People v. Heilman, 01SA360.

• Citation: 52 P.3d 224
• Decision Date: 22 April 2002
• Docket Number: No. 01SA360.,01SA360.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gary James HEILMAN, Defendant-Appellee.
• Court: Colorado Supreme Court

52 P.3d 224

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gary James HEILMAN, Defendant-Appellee.

No. 01SA360.

Supreme Court of Colorado, En Banc.

April 22, 2002.

Stuart A. Vanmeveren, District Attorney, Loren B. Schall, Assistant District Attorney, Mary Joan Berenato, Deputy District Attorney, Fort Collins, CO, Attorneys for Plaintiff-Appellant.

Daniel E. Quinn, Fort Collins, CO, Attorney for Defendant-Appellee. Justice HOBBS delivered the Opinion of the Court.

In this interlocutory appeal, the prosecution challenges the trial court's suppression of evidence obtained as a result of the search of a lawfully parked van. We agree with the trial court that the officer seized the defendant and his van without reasonable suspicion and hold that the trial court properly suppressed evidence obtained from this illegal seizure. The encounter between the defendant and the officer was not consensual.

I.

State Trooper Robert F. Kaminky (Officer Kaminky) was on patrol on the afternoon of June 22, 2001 in Larimer County, Colorado. He was driving by Donath Lake, located near the intersection of County Roads 30E and 30, when he observed a plumbing van parked in a pull-off area that bordered the lake. Two men were sitting inside the van and one man was standing just outside of it.

Wondering if the occupants of the van needed assistance, Officer Kaminky turned the patrol car around in a U-turn and drove back toward the van. Defendant Gary James Heilman (Heilman), who was sitting in the driver's seat, looked up and saw the approaching patrol car. The officer saw Heilman's eyes widen. Heilman appeared to throw something to the floor of the van.

The officer parked approximately ten feet from the van in a T-formation, jumped out of the car, hurried to the van on foot, and said that "he wanted to see everybody's hands." He asked Heilman "What are you doing?" and "Do you need any assistance?" Heilman answered that he did not need assistance and said, "We are just sitting here, relaxing after work." Officer Kaminky then asked Heilman, "What did you throw down?" Heilman pointed to a half-empty 12-pack of Mountain Dew sitting in between the driver's seat and the passenger's seat, gesturing to the center of the van with a sweeping motion. Officer Kaminky asked whether there were any weapons or contraband in the vehicle. Heilman responded, "No. You can sniff around, and you won't find anything." Heilman made a sweeping motion as he said this.

Officer Kaminky then ordered all persons out of the van, ordered them to put their hands behind their heads with fingers interlocked, called for backup, conducted a patdown search of the three individuals and, when back-up officers arrived, began searching the vehicle. None of the three persons appeared to be intoxicated.¹

In searching the van, Officer Kaminky found a black nylon bag. All of the men denied that the bag was theirs. Upon opening the bag, Officer Kaminky found identification cards belonging to Heilman and a small tin containing what the officer assumed to be illegal drugs. The officer then arrested Heilman.

The district attorney charged Heilman with two counts of possession of a schedule II controlled substance, a class 4 felony. § 18-18-405(2)(a)(I), 6 C.R.S. (2001). Heilman filed motions to suppress the evidence and statements, alleging that they were the fruit of an unconstitutional search and seizure of his person and property. The trial court concluded that Officer Kaminky, through a show of force, had effectuated a non-consensual seizure of Heilman and the van without reasonable suspicion. The prosecution argued that the encounter was consensual and that Heilman's statement, "You can sniff around; you won't find anything" constituted consent to search and the evidence should not have been suppressed. We need not reach the consent issue, because: (1) the prosecution did not meet its burden to show that the encounter was consensual; and (2) the trial court's findings, based on the evidence at the suppression hearing, support its conclusion that a seizure without reasonable suspicion occurred. We uphold the trial court's suppression order.

II.

A. Standard of Review

The United States and Colorado Constitutions protect against unreasonable searches and seizures. See U.S. Const. amends. IV, XIV; Colo. Const. art. II, § 7; Outlaw v. People, 17 P.3d 150, 154 (Colo. 2001). They do not proscribe all contact between police and citizens, but apply to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); see also People v. Paynter, 955 P.2d 68, 71 (Colo.1998). As the United States Supreme Court explained in Terry v. Ohio, 392 U.S. 1, 20 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), "[o]nly 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."

Police-citizen encounters are of three different types: (1) arrests; (2) investigative stops or detentions; and (3) consensual interviews or encounters. People v. Jackson, 39 P.3d 1174, 1179 (Colo.2002); People v. Thomas, 839 P.2d 1174, 1177 (Colo.1992). Each of these categories requires varying levels of justification and protection. People v. Cascio, 932 P.2d 1381, 1385 (Colo.1997). While arrests and investigatory stops or detentions are seizures implicating the protections of the Fourth Amendment and Article II, section 7, consensual encounters are not. Jackson, 39 P.3d at 1179. Thus, consensual encounters need not be supported by probable cause or reasonable suspicion. Id.

As the moving party, the defendant has the burden of going forward with evidence of an impermissible seizure. Outlaw, 17 P.3d at 155. This burden requires the defendant to make two showings: (1) the point at which he was "seized" within the meaning of the Fourth Amendment; and (2) that the seizure was unconstitutional. Id. If the defendant satisfies these requirements, the burden of going forward then shifts to the prosecution. Jackson, 39 P.3d at 1180. The burden of proof, however, always remains with the prosecution. Id.; see also People v. Canton, 951 P.2d 907, 909 n. 3 (Colo.1998) (holding that when police detain a person without a warrant, the burden of proof is on the prosecution to prove the constitutional validity of the stop and any subsequent search).

In reviewing the trial court's suppression order, we defer to a trial court's factual findings and will not disturb them if supported by competent evidence in the record. Outlaw, 17 P.3d at 155. However, we review the trial court's conclusions of law de novo. People v. Haley, 41 P.3d 666, 670 (Colo.2001). A consensual encounter consists of a request for voluntary cooperation by the police of an individual who should feel free to leave at any time during such an encounter. People v. Padgett, 932 P.2d 810, 814 (Colo. 1997). During a consensual interview, "a police officer seeks the voluntary cooperation of an individual by asking non-coercive questions." Paynter, 955 P.2d at 72; see also People v. Cervantes-Arredondo, 17 P.3d 141, 146 (Colo.2001). The test is whether a reasonable person under the circumstances would believe that he or she was free to leave and/or disregard the officer's request for information. Thomas, 839 P.2d at 1177-78. This test is objective in nature, based on the factual circumstances surrounding the encounter. Paynter, 955 P.2d at 72. Inherent social pressure to cooperate with the police is not itself a sufficient basis for declaring the encounter nonconsensual. People v. Johnson, 865 P.2d 836, 842 (Colo.1994).

"[A]ny assessment as to whether police conduct amounts to a seizure implicating the Fourth Amendment must take into account `all of the circumstances surrounding the incident' in each individual case." Michigan v. Chesternut, 486 U.S. 567, 572, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988), quoting INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). Because it is fact-based, this test is "necessarily imprecise." Id. at 573, 108 S.Ct. 1975. A totality of the circumstances analysis requires an examination of the behavior of the parties, as well as the physical, temporal, and social context of the encounter. "[W]hat constitutes a restraint on liberty prompting a person to conclude that he is not free to `leave' will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs." Cascio, 932 P.2d at 1386, quoting Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988).

Representative examples of when a seizure occurs include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

Applying the totality of the circumstances analysis, the trial court, and we, must assess "whether the circumstances surrounding an encounter between a police officer and an occupant of a vehicle are so intimidating as to demonstrate that a reasonable, innocent person would not feel free to decline the officers' requests or otherwise terminate the encounter." Jackson, 39 P.3d at 1183-84 (setting forth a number of factors pertinent to a totality of the circumstances analysis). In Jackson, we held that any reasonable person would have understood the officer's instruction to "hang tight in the car" as a command to stay. That instruction, combined with the officer's action in taking the defendant's identification back to the patrol car for a warrants check, constituted a seizure without reasonable suspicion and required suppression of the subsequently discovered...