People v. King

Citation16 P.3d 807
Decision Date16 January 2001
Docket Number No. 00SA222., No. 00SA207
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Kam D. KING, Defendant-Appellee. The People of the State of Colorado, Plaintiff-Appellant, v. Timothy B. Gulick, Defendant-Appellee.
CourtSupreme Court of Colorado

Michael F. Green, District Attorney, Cortez, CO, Attorney for Plaintiff-Appellant.

Richard S. Luhman, Cortez, CO, Attorney for Defendant-Appellee, Kam D. King.

Richard Unruh, Telluride, CO, Attorney for Defendant-Appellee, Timothy B. Gulick.

JUSTICE BENDER delivered the opinion of the court.

In these interlocutory appeals the People challenge suppression orders of the Dolores County District Court. That court held that the encounter between the defendants and the police was not an investigatory stop but rather constituted an arrest and search not supported by the existence of probable cause to arrest. Thus, the trial court suppressed evidence seized incident to that arrest.

We hold that probable cause to arrest exists when, at the time of arrest, the objective circumstances available to a reasonably cautious officer justify the belief that (1) a crime has been or is being committed (2) by the person arrested. Because the police in this case lacked probable cause to believe that the defendants, whom they arrested, had committed or were committing the crime of cultivation of marijuana, we hold that the police acted without probable cause. We also hold that, when officers use force typically associated with an arrest — such as the drawing of weapons, physical restraint, and the use of handcuffs — the prosecution may not characterize the encounter as an investigatory stop unless specific facts or circumstances exist that render the use of such force a reasonable precaution for the protection and safety of the officers. Because no such facts or circumstances exist here, we agree with the trial court's conclusion that the encounter was an arrest unsupported by probable cause and that the evidence seized incident to that arrest must be suppressed. Hence, we affirm.

I. FACTS AND PROCEEDINGS BELOW

Based on the trial court's findings and the uncontested testimony of Agents Matt Buffington and Brooks Bennett, who were the only witnesses who testified at the hearing, the pertinent facts are as follows.

In September 1999, a U.S. Forest Service Investigator learned from hunters that a marijuana "garden" was growing in Roche Gulch, Dolores County, Colorado. Roche Gulch is a dead end or "box" canyon. A road leads into the canyon and ends in an area where hunters or hikers can park. A trail leaves from this area. The marijuana garden was clustered around a natural spring hidden above the trail and was divided into eleven plots, containing more than 200 plants. The forest investigator relayed the hunters' information to agents of the Twenty-Second Judicial District Drug Task Force, who went to the site the next day. Agent Buffington took samples of the leaves from some of the plants and these samples tested positive as marijuana. Buffington testified that the agents noticed that there was fishing line around several of the plots on which hung "a green cloth that looked like it had been sprayed with some type of chemical." In the vicinity, agents also found two empty bottles of what Agent Buffington believed was "Grant's deer repel."

While placing a surveillance camera at the garden to monitor activity there, agents found a Continental Airlines luggage tag lying under some bushes between two of the marijuana plots. The luggage tag bore the name "Tim Gulick" and listed a Durango address. This address was not valid, but a Timothy Gulick was listed as living at an address in Montezuma County, Colorado. That Friday, agents went to that address, where they observed a blue Nissan pickup registered to defendant Kam King. Agent Bennett spoke to a person at that address who identified himself as Kam King. In his testimony, Agent Bennett described Mr. King as approximately six-feet tall with dishwater blond hair. None of the agents saw Mr. Gulick, but records showed him as also around six-feet tall but with longer hair, below his shoulders.

The next Monday, officers returned to Roche Gulch to retrieve the surveillance tape and to put new tape in the camera. They viewed the tape they retrieved that day. This tape showed nighttime footage of two men shining flashlights on the marijuana in the garden. Agent Buffington testified that the only distinguishing feature in the tape was that one of the men had long light hair and that he could not determine whether either of the individuals shining flashlights in the garden was King or Gulick.

That night, the agents set up live surveillance at Roche Gulch. Agent Bennett donned night-vision equipment and climbed up a hillside to observe the garden and the road leading into and out of the canyon. He was in radio communication with Agent Buffington, who parked down the road from the Gulch. Dolores County Undersheriff Shane Schmalz was also present. The trial court found that all the officers had agreed they would arrest anyone removing marijuana. After reaching his hillside perch, Agent Bennett viewed a blue Nissan pickup on the road and identified it as the one he observed at the Gulick residence belonging to defendant King. He communicated this information to Agent Buffington.

Approximately one hour later, Agent Bennett watched as two men with flashlights, one carrying a backpack that appeared to be full, the other with long hair and a dog, walked out of the canyon. The trial court found that Agent Buffington suspected that the backpack contained marijuana. Agent Bennett testified that, although one of the men appeared to have long hair, Bennett was not able to determine any facial features or other identifying attributes of either man through his night vision goggles. Agent Bennett was also unable to determine whether the men were carrying weapons. After the two men entered the Nissan pickup, Agent Bennett watched them drive out of the canyon. Bennett relayed this information to his fellow officers and ran down the hill to his car.

Agent Buffington and Undersheriff Schmalz followed the pickup in their police vehicles and ordered the car to pull over and stop. The two officers conducted a full felony stop: they drew their guns, ordered the men, one at a time, to exit the car, and directed them to lie face down on the ground. Agent Buffington testified that the purpose of the stop was "[t]o identify the individuals [in the car] and to make sure we didn't have marijuana leaving the garden." He believed marijuana might be leaving the garden via the backpack and that the officers "needed to stop the vehicle for further investigation."

Agent Buffington testified that, before making the stop, he feared for his safety because the stop occurred in an isolated mountain area in which it was difficult to maintain radio contact and because he was told in training that people involved in the growing of marijuana often have weapons with them. However, he testified that no specific facts or circumstances existed or occurred indicating that these defendants would be armed or dangerous.1

By the time Agent Bennett arrived, both men were on the ground. Agent Buffington then did a protective search of the cab and camper shell of the pickup finding no other occupants while Bennett and Schmalz handcuffed the men.2 The trial court found that by this point in time both men were under arrest.

The officers then put the men into the police vehicle. Agent Buffington observed that one of the men had long hair. Buffington and Bennett both testified that they observed the two men had pants that were wet to the ankles and they could smell the odor of live marijuana on the men. Buffington testified that his observations of wet pants, long hair, and the odor of marijuana were all made after the felony stop. There was some ambiguity as to exactly when the officers observed the wet pants and smelled the live marijuana.3 The trial court resolved this factual issue by finding that the observations of wet pants and the odor of marijuana took place after the point of arrest that is, after Agent Buffington had checked the car's interior for other occupants and the two men were handcuffed. Next, Buffington found the backpack in the back of the truck near the tailgate and testified that, suspecting marijuana was in the backpack, he opened the backpack to find out what was in it. He found milk cartons containing droplets of water and a hand pump, but no marijuana. Buffington testified that there was no specific evidence that this particular backpack contained marijuana:

Q: ... [A]re there any facts specific to this backpack and this evening that caused you to believe that there was marijuana in that backpack such as a report that someone had seen harvesting or, you know, was carrying a machete? Do you know what I'm getting at?
A: As far as that, no. I had talked to Investigator Bennett. Like I said, I later smelled the live marijuana on their clothing.

Agent Buffington testified that if the officers had not, after the arrest, observed the defendants' wet pants, smelled marijuana on their clothes, and found the cultivation implements in the backpack, then the officers would not have any basis on which to continue to hold the defendants.4

Both defendants were charged with Cultivation of Marihuana, § 18-18-406(8)(a), 6 C.R.S. (2000), Possession of Drug Paraphernalia, § 18-18-428, Possession of Marihuana with Intent to Distribute, § 18-18-406(8)(b), and Controlled Substance/Special Offender, § 18-18-407. Each defendant filed a motion to suppress the fruits of the search on the basis that they were procured incident to an illegal arrest. The trial court held a hearing in the King case, at which Agents Buffington and Bennett testified. The trial court granted King's motion to suppress. The trial court later held a brief hearing in the Gulick...

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    ...or effect a seizure are mixed questions of law and fact with constitutional implications that we have reviewed de novo. People v. King, 16 P.3d 807 (Colo.2001); People v. D.F., 933 P.2d 9 (Colo.1997). We have reviewed the ultimate inquiry under the Fourth Amendment, the reasonableness of a ......
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