People v. Jackson

• Decision Date: 25 May 2000
• Docket Number: No. 98CA2496.,98CA2496.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Derek Lavan JACKSON, Defendant-Appellant.
• Court: Colorado Court of Appeals

13 P.3d 838

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Derek Lavan JACKSON, Defendant-Appellant.

No. 98CA2496.

Colorado Court of Appeals, Div. III.

May 25, 2000.

Rehearing Denied July 27, 2000.

Certiorari Granted November 20, 2000.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Cynthia Sheehan, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge TAUBMAN.

Defendant, Derek Lavan Jackson, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession of a controlled substance. We reverse and remand for further proceedings.

On October 24, 1997, at approximately 1:30 a.m., defendant was a passenger in a car driven by an acquaintance. A police officer patrolling the neighborhood stopped the car because the driver was operating it without headlights. The officer then requested the driver's license, registration, and insurance; the driver complied with this request. The officer then requested defendant's identification, and defendant also complied.

Upon returning to his patrol car, the officer ran a warrant check on both defendant and the driver, and after discovering that defendant had three outstanding traffic warrants, arrested him. Approximately fifteen minutes elapsed between the time of the stop and defendant's arrest. During the booking procedure, the police found two small pieces of crack cocaine weighing .098 grams in defendant's jacket. Defendant was later charged with possession of a controlled substance.

Prior to trial, defendant moved to suppress the cocaine seized from him as well as statements he had made to officers after his arrest. The trial court denied this motion, and defendant was convicted of the charge.

Defendant asserts the trial court erred in denying his motion to suppress. More specifically, he contends that he was subjected to an illegal search and seizure because the officer obtained his identification without any basis to believe he was engaged in criminal activity and then arrested him based on the outstanding traffic warrants. We agree.

The issues presented in this case were left unresolved by the supreme court in People v. H.J., 931 P.2d 1177 (Colo.1997). Those issues are: (1) whether a police officer must always have a reasonable suspicion of criminal activity to request identification from a passenger in a vehicle, and (2) whether under some circumstances such a request would be viewed as a consensual interview.

We conclude that, in the circumstances presented here, the officer's request was not a consensual interview, and the officer must have had a reasonable suspicion of criminal activity to request defendant's identification. Moreover, there was an investigatory stop of the driver, while the encounter with defendant constituted a seizure in violation of his Fourth Amendment rights. Accordingly, his motion to suppress should have been granted, and his conviction is therefore reversed.

The Fourth Amendment provides that people shall "be secure in their persons... against unreasonable searches and seizures" by law enforcement officers. U.S. Const. amend. IV. Not all police-citizen encounters are "seizures" of persons; a seizure only occurs when an officer, by means of physical force or show of authority, restrains an individual's liberty. People v. Paynter, 955 P.2d 68 (Colo.1998).

The supreme court has recognized three categories of police-citizen encounters: (1) arrests, (2) investigatory stops, and (3) consensual interviews. Arrests and investigatory stops are seizures as defined by case law, and therefore implicate constitutional protections. An arrest must be justified by probable cause, and an investigatory stop must be justified by a reasonable and articulable suspicion of criminal activity. People v. Paynter, supra.

A consensual interview occurs when a police officer seeks the voluntary cooperation of a person by asking non-coercive questions. A consensual interview does not implicate constitutional protections because during such an interview a citizen may leave at any time or may ignore a police officer's instructions. People v. Paynter, supra.

There are no bright-line tests for courts to follow in reviewing asserted Fourth Amendment violations. The facts of a case must be evaluated on a case-by-case basis to determine whether they warranted an intrusion and whether the scope of the intrusion was reasonably related to the circumstances that justified the interference. People v. H.J., supra.

Therefore, when determining whether a seizure has occurred, a court must consider the totality of the circumstances surrounding the incident and decide whether a citizen reasonably believed he or she was free to leave. People v. Paynter, supra. "No single fact is dispositive under the totality of the circumstances test," and several factors differentiate the categories of encounters. United States v. McSwain, 29 F.3d 558, 562 (10th Cir.1994).

For instance, factors indicating an investigatory stop 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." People v. H.J., supra, 931 P.2d at 1181. A court may conclude officers displayed their authority if they activated the siren and overhead lights of their patrol car during the stop. See People v. Paynter, supra

(contact not an investigatory stop where car was already stopped before the officer approached, and the officer used his spotlight for illumination, but did not turn on his overhead lights or activate his siren). When a car is pulled over, it is reasonable for a person to conclude "he was not at liberty to ignore the police presence and go about his business." United States v. McSwain, supra, 29 F.3d at 562 n. 1; see also People v. H.J., supra (an officer pulling over a vehicle in transit is ordinarily conducting an investigatory stop as opposed to a consensual interview).

Furthermore, when a police officer retains a person's identification, that person, "as a general rule, will not reasonably feel free to terminate the encounter." People v. Paynter, supra, 955 P.2d at 75. However, an officer's request for identification alone does not amount to a seizure under the Fourth Amendment. People v. Paynter, supra.

In Paynter, the court recognized that events occurring after an individual voluntarily provides identification, including the length of time an officer retains the identification, could transform a consensual encounter into an investigatory stop. See People v. Sinclair, 281 Ill.App.3d 131, 217 Ill.Dec. 283, 666 N.E.2d 1221 (1996)

(officer's request for driver's license and instruction for person to remain in car constituted a seizure).

On the other hand, officers are not required to inform individuals that they are free to leave or have the right to ignore requests for identification. However, the failure to inform individuals of those rights is a factor courts may consider in determining the nature of the encounter. People v. Paynter, supra.

Here, the trial court concluded that the traffic stop and request for defendant's identification were part of a consensual interview rather than an investigatory stop. It is undisputed that (1) the officer legitimately stopped the driver of the car in which defendant was a passenger; (2) the driver produced a valid license, registration, and insurance documents for the vehicle; (3) the officer then requested defendant's identification, and defendant complied; and (4) the officer then instructed defendant and the driver to wait in the vehicle.

However, based on the officer's testimony, the court determined that defendant was free to leave, and that any evidence obtained incident to the stop was admissible.

This case involves a mixed question of fact and law. The trial court's determination that defendant was free to leave is a finding of fact subject to a clearly erroneous standard of review. However, the trial court's determination that this was not an investigatory stop with regard to defendant is a question of law subject to de novo review. People v. D.F., 933 P.2d 9 (Colo.1997).

The People rely on People v. Paynter, supra,

and People v. H.J., supra, in which the supreme court held that an officer's request for identification from a vehicle passenger constituted a consensual interview. We agree with defendant that both cases are distinguishable.

In People v. H.J., supra,

the court determined that an officer may request identification of passengers in a car stopped for a traffic violation where there is a reasonable suspicion that the car has been stolen or that there is other criminal activity occurring or about to occur. The officer's reasonable suspicion in H.J. was supported by the fact that there, no one in the vehicle could produce registration papers for it. The court held that, based on that suspicious circumstance, the officers could reasonably infer that the passengers in the vehicle were involved in stealing the vehicle, and therefore, could be asked for identification.

The court, however, specifically declined to address whether a seizure occurs where the officer does not have probable cause or a reasonable suspicion that a passenger in a vehicle stopped for a traffic violation is engaged in criminal activity. Thus, the court's holding is not dispositive.

People v. Paynter, supra is likewise distinguishable. In Paynter, the officer approached a parked vehicle late at night, shining his spotlight on the vehicle for illumination. The officer did not turn on his vehicle's overhead lights before approaching the vehicle. After approaching the parked vehicle, the officer requested the identification of the occupants, asked what...