People v. Lewis, 82SA565

• Decision Date: 28 February 1983
• Docket Number: No. 82SA565,82SA565
• Citation: 659 P.2d 676
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John P. LEWIS, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 676

659 P.2d 676

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John P. LEWIS, Defendant-Appellee.

No. 82SA565.

Supreme Court of Colorado,

En Banc.

Feb. 28, 1983.

Alexander M. Hunter, Jr., Dist. Atty., Ann B. Stone, Deputy Dist. Atty., Boulder, for plaintiff-appellant.

Miller, Gray, Hale & Truman, P.C., William R. Gray, Boulder, for defendant-appellee.

QUINN, Justice.

The People in this interlocutory appeal challenge a suppression ruling of the district court. The court, after entertaining the defendant's motion to reconsider a prior denial of his motion to suppress by another district judge, suppressed approximately one-half pound of cocaine seized by police officers from the defendant's automobile during a temporary detention of the defendant for suspected drug trafficking. The court determined that the officers' initial actions in contacting the defendant led him to reasonably believe that he was not free to leave the scene, and on this basis the court concluded that the defendant had been arrested. Since the officers had only reasonable suspicion to detain the defendant rather than probable cause to arrest him, the court suppressed the cocaine as the fruit of an illegal arrest. We conclude that the court erroneously applied a probable cause standard to a temporary detention, and we accordingly reverse the suppression order.

I.

On May 30, 1978, an information was filed in the district court charging the defendant with the sale of a narcotic drug, cocaine, on April 28, 1978, in Boulder County, Colorado. Section 12-22-302 and 322, C.R.S.1973 (1978 Repl.Vol. 5). The defendant filed a motion to suppress, which was heard on November 9, 1978, and denied.

The evidence at the suppression hearing established that the defendant's arrest was the product of an intensive investigation, conducted by the Colorado Organized Crime Strike Force and local law enforcement agencies, of illegal drug traffic in the Boulder area in the early part of 1978. In April of that year Officers Petrafeso and Simmons, working in an undercover capacity, made contact with a Mr. Madigan, who was a reputed local cocaine dealer. The agents arranged to meet Madigan on April 28, 1978, at the Boulder El Rancho Hansen Motel for the purpose of purchasing a pound of cocaine for $28,800.

It had been agreed that the purchase would be made in two stages, one-half pound at a time. Madigan also agreed that if, after testing, the buyers found the first half pound to be of acceptable quality and purchased that amount, he would then contact his supplier somewhere near the motel and return with the other one-half pound for testing and possible purchase. The officers had pre-arranged to tell Madigan that the first half pound was of poor quality and to ask him to make contact with his supplier for a higher quality drug. With various other officers conducting a surveillance of the motel and surrounding area, it was hoped that by this ruse Madigan would lead the officers to his supplier.

Madigan, accompanied by a friend, Chifullo, met the officers at room 12 of the motel and was prepared to transact the sale. After Agent Petrafeso tested the cocaine and told him that it was of poor quality, Madigan made a telephone call from the motel room to "John," his supplier. Petrafeso asked Madigan to let him talk to John. John told Petrafeso that although he knew the cocaine was of high quality, he nevertheless agreed to furnish Madigan with another batch.

Madigan left the motel to meet with his supplier. Petrafeso also left on the pretense that he was going to check on his money in his car across the street. Petrafeso observed Madigan walk to a Kentucky Fried Chicken restaurant where he talked with another man at the front of the restaurant. Both men then went to the rear of the restaurant and Petrafeso momentarily lost sight of them. Petrafeso at this time radioed the surveillance officers that someone should "get near the Kentucky Fried Chicken" because Madigan was meeting with his supplier at the restaurant. After the radio message was transmitted, Madigan came into view again and returned to the motel with a fresh supply of cocaine.

Two of the surveillance officers, Cantwell and House, heard Petrafeso's radio transmission and drove immediately to the parking lot of the restaurant. They arrived there after Madigan had already returned to the motel. Since the officers had no description of the supplier, they employed a process of elimination in determining which person, of those present, might be the likely suspect. There were three vehicles in the parking lot. One was in the process of leaving, and since the drug transaction was still being negotiated in the motel, the officers eliminated the driver of that vehicle. Two persons were present in another vehicle, casually eating chicken, and they eliminated those as likely suspects.

The other vehicle in the parking lot was occupied by the defendant. Cantwell observed the defendant sitting in his vehicle, not eating, and looking intently into his side view mirror which was focused on the El Rancho Hansen Motel. During the next ten minutes the defendant never took his eyes off the mirror and appeared to be extremely nervous. While Cantwell and House had the defendant under observation, Petrafeso transmitted another radio message in which he stated that the purchase had been completed and Madigan and Chifullo had been arrested inside the motel. Petrafeso also told the surveillance officers that Chifullo had a weapon on his person and that they should be cautious in contacting the suspected supplier because he might be armed.

Upon receiving this transmission Officers Cantwell and House approached the defendant's vehicle in order to detain him until Petrafeso arrived and either identified or cleared him as the man whom Madigan had previously contacted at the restaurant. In approaching the vehicle Officer House had his gun drawn, and Officer Cantwell ordered the defendant to keep his hands on the steering wheel. Cantwell opened the defendant's car door and told the defendant to stay there while he searched "around his legs and under the seat for a gun." The defendant was then ordered out of the vehicle. While House frisked the defendant for a weapon, Cantwell looked inside the vehicle around the dashboard area for a weapon. At this point Cantwell observed several plastic baggies of white powder protruding from a black bag located on the floor of the front seat. The suspected cocaine was seized and the defendant was arrested. Officer Petrafeso arrived moments later and identified the defendant as the man whom he previously had observed meeting with Madigan at the restaurant.

The court, in denying the motion to suppress, ruled that Officers Cantwell and House had reasonable suspicion to detain the defendant for a temporary investigation and to frisk him for weapons. The court also concluded that the cocaine was observed in plain view during this temporary detention and was properly seized as contraband.

The case was scheduled for trial on June 26, 1979, but the defendant failed to appear. He was ultimately apprehended in June 1982 in Nederland, Colorado. During this intervening period the judge who denied the original motion to suppress had retired from the bench and the case was assigned to another judge. In the latter part of 1982 the defendant filed a motion to reconsider the suppression ruling, alleging that there had been a substantial change in Colorado law since the order denying suppression. The court agreed to reconsider the defendant's motion and ruled that it would consider the transcript of the prior hearing and any evidence pertinent to the legal standards applicable to the motion. ¹ No new evidence was presented by either the prosecution or the defense. On November 16, 1982, the court suppressed the cocaine, ruling that the officers' conduct in initially contacting the defendant led him to reasonably believe that he was not free to leave the parking lot and, therefore, he had been subjected to an arrest rather than a detention. Since at the time of the arrest the officers only had a reasonable suspicion of criminal activity rather than probable cause, the court concluded that they "were unlawfully in the car of the Defendant" when the cocaine was seized. ²

The People on this appeal urge two grounds for reversal. They argue that since the initial order denying the defendant's motion to suppress was supported by substantial evidence, it was improper for another district judge to reconsider the suppression motion. They also argue that the district judge, in granting the defendant's motion, applied an inappropriate constitutional standard in suppressing the evidence seized from the defendant's vehicle. We will consider these arguments separately.

II.

We reject the People's first argument that a district judge may not reconsider a motion to suppress previously denied by another district judge. A motion to suppress is interlocutory in character, and neither res judicata nor collateral estoppel applies to a ruling which is less than a final judgment. See, e.g., DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962); People v. Hearty, 644 P.2d 302 (Colo.1982); D.H. v. People, 192 Colo. 542, 561 P.2d 5 (1977); Gonzales v. District Court, 164 Colo. 433, 435 P.2d 384 (1967). The judge presiding over the trial of a case is necessarily responsible for the admission of evidence during the trial and any judgment that might ultimately be entered in the case. We recognized this responsibility of the trial judge in Gibbons v. People, 167 Colo. 83, 445 P.2d 408 (1968), where we held that a pretrial denial of a motion to suppress by one judge does not necessarily bind another judge to whom the case had been assigned for trial where, in the period intervening between the pretrial motion and the scheduled trial, there had been a significant change in constitutional...