People v. Hughes

• Decision Date: 17 January 1989
• Docket Number: No. 87SA469,87SA469
• Citation: 767 P.2d 1201
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. James Weldon HUGHES, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1201

767 P.2d 1201

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. James Weldon HUGHES, Defendant-Appellee.

No. 87SA469.

Supreme Court of Colorado,

En Banc.

Jan. 17, 1989.

G.F. Sandstrom, Dist. Atty., Tenth Judicial Dist., Scott B. Epstein, Chief Deputy Dist. Atty. Kathleen G. Eberling, Deputy District Atty., Pueblo, for plaintiff-appellant.

Joseph A. Koncilja, Pueblo, for defendant-appellee.

MULLARKEY, Justice.

In this interlocutory appeal pursuant to C.A.R. 4.1, the People challenge the trial court order suppressing a film canister containing cocaine and a statement made by the defendant, James Weldon Hughes (Hughes), at the time the police discovered the cocaine. We conclude that the trial court improperly restricted the permissible scope of the search under the search warrant and erroneously suppressed the cocaine and the defendant's statement. We reverse and remand the case for further proceedings.

I.

On January 30, 1987, Detective Lewis Andrew (the detective) obtained a search warrant to search for cocaine and cocaine "vessels" and "implements" in Gary Spaccamonti's apartment in Pueblo. The affidavit which was submitted in support of the search warrant relied largely on information supplied by a confidential informant. The affidavit stated that the informant's reliability was based on the fact that the informant had worked with the detective on narcotics cases for over three months and that the informant had always supplied accurate information, including information which recently led to the arrest of two people for distribution of cocaine. The affidavit also recounted the confidential informant's interactions with Gary Spaccamonti who lived in the apartment identified in the search warrant. According to the informant, Spaccamonti had cocaine for sale at the residence within twenty-four hours of the time when the police applied for the search warrant.

The informant also provided a description of Spaccamonti's drug supplier, but this information was not included in the affidavit for the search warrant. The remaining facts of this case were supplied by the testimony of Detective Andrew and Officer Steven Samek who were the only witnesses at the suppression hearing. In his testimony at the suppression hearing, the detective stated that the informant described the supplier as "an older white male, approximately 50 years old, he was a cowboy, he was from Trinidad and he was also a pilot." The informant had never seen the supplier but had heard Spaccamonti describe him.

On January 30, 1982, five minutes before the detective and Officer Samek entered the apartment to execute the search warrant, the confidential informant left the apartment. The informant told the detective that Spaccamonti, his girlfriend, his son, and another white male "dressed like a cowboy" were currently in the apartment. The informant said he thought the man was from Trinidad but that he did not think the man was the supplier because, in his opinion, the man was not that old.

The detective and the officer then knocked on the door and waited until Spaccamonti opened it. They identified themselves as police officers and announced that they had a search warrant. As they looked into the apartment, they saw a man dressed in a cowboy shirt, jeans and cowboy boots who was later identified as the defendant Hughes; Spaccamonti; a woman; and a young boy. Detective Andrew testified that, when he observed Hughes, he thought Hughes met the informant's description of Spaccamonti's drug supplier. In addition to noting Hughes' clothing, the detective said that Hughes appeared to be an older white male.

As the police entered the apartment, Hughes began to get up from the couch. The detective ordered Hughes to turn around and put his hands up against the wall so that the detective could frisk him. The detective testified that he was initially searching Hughes for weapons because, in his fourteen-year experience as a narcotics officer, people who buy and sell narcotics frequently carry dangerous weapons. The detective also stated that he frisked Hughes because he felt Hughes matched the informant's description of the drug supplier.

As the detective was doing a pat-down search of Hughes' chest area, Hughes "dropped his right arm and ducked his head over" in a manner which caused the detective to believe that he was trying to conceal something in his right shirt pocket. The detective responded by feeling Hughes' pocket and noting a hard cylindrical object there. He took the object out of Hughes' pocket and saw that it was a film canister. He then opened it and saw two plastic bags of a substance which was later determined to be cocaine. While the detective was examining the contents of the canister, Hughes volunteered the statement, "I just bought it." The detective told Hughes that he was under arrest, handcuffed him, and thoroughly searched Hughes, discovering $330 in U.S. currency in Hughes' pockets. The search of the premises also uncovered several packets of cocaine and drug paraphernalia, but that evidence is not at issue in this case.

The trial court found that no probable cause existed to arrest or search Hughes because, based on the informant's information about Hughes, the police could only have a "mere suspicion," not enough to rise to the level of probable cause. The trial court suppressed the cocaine and all items found in Hughes' pockets as well as his statement.

II.

The defendant initially asserts that the mere fact that the police had a search warrant for the premises did not justify a search of everyone who happened to be found on the premises at the time the search warrant was executed. He relies on Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), which prohibits the indiscriminate searching of all those present in a public place during the execution of a search warrant for illegal drugs on the premises. Ybarra rejected the notion that an individual who was present on the premises could be searched because of his "mere propinquity to others independently suspected of criminal activity." 444 U.S. at 91, 100 S.Ct. at 342. Rather, the court re-affirmed that the test of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), must be met in order to search a person not named in the search warrant. Ybarra, 444 U.S. at 92-93, 100 S.Ct. at 342-343.

Ybarra is factually distinguishable because this case does not involve public premises and the police did not conduct a wholesale search of all who were present. Only two individuals were searched: Gary Spaccamonti, who was the named occupant of the premises identified in the search warrant, and the defendant Hughes who, in the officer's judgment, matched the informant's description of the drug supplier. The woman and young boy, who also were present, were not searched. Thus, we conclude that Ybarra does not prohibit the search of Hughes. We next consider whether the search was permitted under Terry v. Ohio.

III.

Terry v. Ohio permits a weapons search or "stop and frisk" if specific, articulable facts, taken together with reasonable inferences which may be drawn from those facts, "give rise to a reasonable suspicion that the individual is, was, or is about to be engaged in criminal activity." United States v. Williams, 822 F.2d 1174, 1178 (D.C.Cir.1987) (quoting United States v. Denney, 771 F.2d 318, 321 (7th Cir.1985) and Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1880). We have interpreted Terry as establishing a three part test which allows police to conduct an investigatory stop and frisk when (1) there is an articulable and specific basis in fact for suspecting that criminal activity has occurred, is taking place, or is about to occur; (2) the purpose of the intrusion is reasonable; and (3) the scope and character of the intrusion is reasonably related to its purpose.

People v. Melgosa, 753 P.2d 221, 225 (Colo.1988); People v. Tate, 657 P.2d 955, 958 (Colo.1983).

Applying the Terry standard to the facts of this case, we conclude that the record establishes the existence of all three conditions necessary for a proper stop and frisk.

A.

First, the officers had enough facts provided by the informant to have a specific, articulable basis to suspect that cocaine was present and that Spaccamonti had offered cocaine for sale on the premises within the past twenty-four hours. Hughes, seated in Spaccamonti's living room, appeared to match the informant's description of Spaccamonti's drug supplier.

We reject the defendant's contention that the police could not reasonably infer that he was the drug supplier because the informant told the police that he did not believe that the defendant was the drug supplier. As the evidence discussed in part I shows, the informant came out of the apartment shortly before the search warrant was executed. He told the detective that a man "dressed like a cowboy" was present in Spaccamonti's apartment. He added his opinion that the man in the apartment was not Spaccamonti's supplier because he was not old enough. Based on this statement by the informant, Hughes argues that the detective could not reasonably have suspected that he was the drug supplier. In our view, Hughes' argument would require the police to possess a certainty of knowledge which far exceeds the standard of Terry.

Terry requires only that police have a reasonable suspicion that the defendant is engaged in criminal activity, a less exacting standard than the standard which the police must meet for probable cause. People v. Melgosa, 753 P.2d at 225. The United States Supreme Court explained the reason for the lesser degree of certainty for a Terry stop:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police...