People v. Johnson
| Decision Date | 24 January 1994 |
| Docket Number | No. 93SA164,93SA164 |
| Citation | 865 P.2d 836 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Darin R. JOHNSON, Defendant-Appellee. |
| Court | Colorado Supreme Court |
A. William Ritter, Jr., Dist. Atty., Nathan B. Coats, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellant.
Michael G. Root, Elena J. Eisenberg, Denver, for defendant-appellee.
In this case, we are called upon to review the district court's order suppressing six ounces of cocaine confiscated from the luggage of the defendant as the defendant waited to board a plane bound for Ontario, California. We hold that the initial police-citizen encounter at issue here was not a seizure and that the defendant's consent to the ensuing search of his luggage was given voluntarily. We therefore reverse the district court's suppression order and remand for proceedings consistent with this opinion.
On November 5, 1992, while on evening narcotics assignment at Stapleton International Airport in Denver, Special Agent Robert Gregory of the Federal Drug Enforcement Administration and Detective Daniel Kimmett of the Denver Police Department noticed the defendant, Darin R. Johnson (Johnson), running down Concourse C. Apparently heading towards a departure gate, Johnson was carrying a pillowcase stuffed with clothing and a brown tweed bag. The officers continued to observe Johnson as he slowed his pace to a walk, approached the gate attendant at Gate C-18, and asked the gate attendant where he could find a public phone. After obtaining directions from the attendant, Johnson left his luggage in the waiting area and walked to a public pay phone located about fifty feet from the gate. The officers approached within a close enough distance to hear Johnson's conversation. Although the officers were unaware of whom Johnson was talking to, it was apparent to them that he was attempting to arrange for ground transportation at the conclusion of his flight. After completing the call, Johnson returned to the boarding area at Gate C-18 and entered the line which had formed to board the aircraft for the scheduled commercial flight. While Johnson was still in line waiting to board the aircraft, both officers approached him, displayed their badges, identified themselves as law enforcement officers, and asked if they could speak with him. At the suppression hearing, Officer Gregory presented the following undisputed testimony regarding the encounter with Johnson:
While [Johnson] was waiting in line to board the airplane, we contacted him; walked up, identified ourselves as police officers. I asked Mr. Johnson if I could talk to him. He said yes. I asked him if he was flying out. He said yes, he was. I said, "Do you have an airline ticket?" which he produced. His name was on top of the ticket, which indicated he was flying out to Ontario[, California].
I then handed him his ticket back to him; asked him for a driver's license or any identification. He produced a California driver's license bearing his name; photo was indeed him. I then handed back the driver's license. Officer Kimmett asked if he was carrying any narcotics or large sums of money. He stated no. Officer Kimmett then asked if he would give consent to search his bags, and Mr. Johnson did give consent for the search.
In response to Officer Kimmett's inquiry, Johnson then handed both bags to Officer Kimmett. Kimmett searched the bags and discovered what was later determined to be six ounces of cocaine in the pocket of a pair of pants from one of the bags. Based on their preliminary identification of the substance found in the search, the officers placed Johnson under arrest and conducted a search incident to an arrest.
Johnson was eventually charged with unlawfully possessing more than 28 grams of cocaine in violation of section 18-18-405, 8B C.R.S. (1992 Supp.). He filed a motion to suppress the cocaine seized from his bag at the airport, and the district court held a hearing on the motion on June 2, 1993.
At the hearing, Johnson argued that the officers conducted an illegal investigatory stop and that the cocaine seized from his possession should be suppressed because the seizure of the cocaine was a direct result of the illegal stop. The district court agreed, finding that the prosecution "conceded" that the original stop was illegal, and holding that although Johnson's consent to the search was voluntary, it was not sufficiently attenuated from the officers' prohibited actions to remove the taint of the illegal stop. Thus, the district court granted Johnson's motion to suppress the seized cocaine.
The People subsequently filed this interlocutory appeal, 1 disputing the district court's finding that the prosecution conceded the stop was illegal and arguing that the search of Johnson's luggage was consensual in nature. A review of the record confirms that the People did not, in fact, concede that the stop was illegal. Thus, because we find that Johnson's initial encounter with the officers in question was not a seizure and Johnson's subsequent consent to a search of his bags was voluntary, we reverse the suppression order of the district court.
In this case we examine a police-citizen encounter and determine the legality of two separate, though related, actions in the course of that encounter on the part of law enforcement officers. The first action we must review is the officers' initial contact with Johnson including the questions asked by the officers and the officers' brief examination of Johnson's airline ticket and identification. The second action to be scrutinized involves the officers' search of Johnson's luggage and subsequent seizure of the contents, and Johnson's alleged consent to this search. As a preliminary matter, however, we will address Johnson's argument that at the suppression hearing the People conceded the illegality of the initial stop and therefore cannot now raise the issue on appeal.
The Fourth Amendment to the United States Constitution and Article II, Section 7 of the Colorado Constitution hold that the people shall be secure in their persons from "unreasonable searches and seizures." It is well-recognized that a brief, investigatory stop does not violate this "reasonableness" standard where the stop is justified by reasonable, articulable suspicion that the individual has or is engaged in criminal activity, and the scope and character of the detention is reasonably related to its purpose. Stone v. People, 174 Colo. 504, 508, 485 P.2d 495, 497 (1971); accord People v. Carillo-Montes, 796 P.2d 970, 973 (Colo.1990) (); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ().
The district court ruled that the prosecution conceded the encounter between Johnson and Officers Gregory and Kimmett was an investigatory stop unjustified by the requisite "reasonable suspicion" that the defendant was involved in criminal activity. We disagree. The record of the suppression hearing makes it clear that while the prosecution did concede that the police lacked any articulable basis to suspect Johnson was involved in criminal activity and thus were acting without a reasonable suspicion to stop the defendant, 2 the prosecution did not at any time concede that the encounter was an investigatory "Stone " stop. On the contrary, the principal argument put forth by the prosecution at the suppression hearing was that the encounter with the defendant was not sufficiently intrusive to rise to the level of a seizure, and thus did not implicate the Fourth Amendment. Immediately after conceding that the officers lacked reasonable articulable suspicion to stop Johnson, the prosecuting attorney was asked by the district court judge whether Johnson's consent to the search of his bags overrides the initial unlawful stop. In response, the prosecutor argued that the encounter was not a "stop":
I think there was not even what can be called a stop. We know from Pancoast, back in '82, that not every confrontation between a citizen and a police officer arises to a Fourth Amendment type of stop or seizure.
The court disagreed, responding that Still, the prosecutor pressed forward with his argument:
A police officer can go up to any person on the street, especially when the person is continuing to walk along or carry their luggage. And, frankly, Pancoast and Florida v. Royer and Florida v. Rodriguez, of the U.S. Supreme Court, specifically in the Royer case, when detectives approach someone in an airport, identify themselves, and ask to speak with him and then ask to see his ticket and driver's license, this, quote, confrontation does not constitute a stop or seizure.
(Emphasis added).
These statements indicate that the prosecution did not concede that the encounter in question was an investigatory stop. Not only does the prosecuting attorney plainly state that the confrontation here did not constitute a "stop or seizure," and cite authority for his contention, but immediately after making this argument the prosecutor submitted to the court a brief on the issue of stops in airports--certainly not the action of a party conceding that a Stone stop had occurred.
Despite the argument put forth by the prosecutor, it appears that the district court remained convinced that the stop was conceded. The confusion on this matter is evident from the following colloquy between defense counsel and the trial judge, which took place shortly after the prosecutor had argued that the encounter "was not even what can be called a stop":
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