People v. Mangum, 26803

• Decision Date: 18 August 1975
• Docket Number: No. 26803,26803
• Citation: 539 P.2d 120,189 Colo. 246
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Brown A. MANGUM and Vincent P. Frey, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 120

539 P.2d 120

189 Colo. 246

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Brown A. MANGUM and Vincent P. Frey, Defendants-Appellees.

No. 26803.

Supreme Court of Colorado, En Banc.

Aug. 18, 1975.

Robert R. Gallagher, Jr., Dist. Atty., Jerry B. Tompkins, Deputy Dist. Atty., Littleton, for plaintiff-appellant.

Rollie R. Rogers, Colo. State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, T. Michael Dutton, Deputy State Public Defender, Denver, for Brown A. Mangum, defendant-appellee.

Roath & Brega, P.C., Charles F. Brega, Denver, for Vincent P. Frey, defendant-appellee.

KELLEY, Justice.

This is an interlocutory appeal initiated by the district attorney on behalf of the People, challenging the correctness of rulings by the trial court sustaining motions to suppress (1) physical evidence and (2) statements and admissions of defendant Frey. We reverse.

Defendants Mangum and Frey are jointly charged with second-degree burglary (section 18--4--203, C.R.S. 1973), theft (section 18--4--401, C.R.S. 1973) and two counts of conspiracy (section 18--2--201, C.R.S. 1973).

The motion to suppress, in brief, was based upon the lack of probable cause to arrest or to search and seize the physical evidence. Also, defendants contend that

'any statements solicited from said defendants were the fruit of an invalid arrest, were not voluntarily made and were not made after a full, proper, and timely advisement of the defendants' constitutional and procedural rights.'

At the conclusion of the suppression hearing, the court took the matter under advisement and subsequently entered a minute order, suppressing the tangible physical evidence, because 'the search and seizure were instituted without probable cause to establish any crime had been committed.' In reference to the statements, the court held that 'where no Miranda warnings had been given (they) are not voluntary.' The court made no findings of fact beyond the broad general ones implicit in its ruling.

The evidence disclosed the following factual setting. On the day of the alleged offense, at about one o'clock a.m., Officers Rose and Conner of the Littleton Police Department were on routine patrol in a quiet residential area of Littleton. As they approached the intersection of Prince and Costilla Streets, they observed a blue Pontiac sedan with its parking lights on and the motor running double parked beside a motor home. At about the same time, Officer Conner observed a person on foot leaving the immediate area of the motor home. This aroused their suspicions so they decided 'to see what was going on.'

As they approached the parked car, its headlights were turned on and it started moving in the opposite direction from the police cruiser. The officers made a Uturn, caught up with and stopped the blue sedan three blocks from the motor home. The patrol car stopped directly behind the Pontiac. Both officers got out of their car with Officer Rose going forward on the left side and Officer Conner on the right side of the blue sedan. The driver of the Pontiac exited his car and started toward the patrol car meeting Officer Rose near the rear fender of the Pontiac. Inspection by Officer Conner determined that the driver was the only person in the Pontiac.

The driver identified himself as Mangum. At the request of Officer Rose, he produced his driver's license but was unable to comply with the request for a certificate of vehicle ownership. He explained that the automobile belonged to a Mr. Frey.

When Officer Conner inspected the blue sedan to determine whether there were other occupants, with the aid of a flashlight he observed numerous items of electronic equipment lying on the back seat and on the floor of the Pontiac. The wires had been cut. This aroused his suspicion. he reported this discovery to Officer Rose.

At about this time a young man arrived at the scene and identified himself as Mr. Frey. He was recognized by Officer Conner as the person previously seen leaving the area of the motor home. Upon Frey's arrival, Mangum identified him as the owner of the Pontiac. Frey produced his driver's license and the auto registration certificate. At this point Officer Conner, over the police radio, requested an identification check on the two individuals. With a few minutes he learned that there was an outstanding arrest warrant for Mangum who was thereupon arrested.

Officer Rose, shortly after Frey's arrival at the scene, asked him if he had any objection to the officers looking at the electronic gear in the back of his car. Frey consented. Officer Rose then asked to whom the gear belonged and Frey replied that he had removed it from Mangum's motor home; that the tape deck was his but that he had not had an opportunity to mount it in his vehicle. Rose, upon examining it, advised Frey that the serial number on one piece of equipment had been obliterated. Frey responded, 'We didn't do that. It must have been done by the man we just stole the stuff from.'

At about this point, Officer Keenan of the Littleton Police Department, in response to a call from Officer Rose, arrived on the scene for the purpose of removing Frey to the jail. Keenan happened to be an acquaintance of Frey's, having bought a motor home from a firm for whom Frey worked as a mechanic. Frey actually worked on the motor home which Keenan had purchased. Keenan added that he and Frey had seen each other a dozen times in the two-year interval since the purchase of the motor home.

When Keenan saw his 'friend' at the scene, he asked him what was his problem. Frey responded, according to Keenan, 'He said he got caught after entering a motor home illegally and taking some stuff out of it.'

Keenan then put Frey in his patrol car and told him not to talk. Frey started talking again and the officer told him that he should be advised of his rights. Frey stated he knew what his rights were, but he didn't care, that he wanted to tell Keenan that he broke into the motor home, that he had used a master key to get into it and that 'he had taken a bunch of parts out of that motor home.'

Upon arrival at police headquarters, Frey was formally advised of his rights, then signed the advisement form. He thereafter made written confessions of his own guilt and implicated Mangum.

I.

The first issue raised by the court's ruling is whether the initial stop of the blue sedan was illegal because of the lack of 'probable cause to establish that any crime had been committed.' The defendants in their brief contend that there was no probable cause or 'reasonable suspicion that any crime or traffic violation had been committed.'

The recited facts were more than sufficient to justify the suspicions of the two police officers that a crime had been committed or that some type of illegal activity was in progress. They were justified in making a 'stop' to ascertain what the defendants were 'up to.' The facts are equally as provocative of police action as those in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which sanctioned 'stop and frisk.'

As pointed out in Terry, the governmental interest in effective crime prevention and detection underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for investigating possible criminal behavior, even though there is no probable cause to make an arrest. The situation which unfolded before the two police officers suggested the necessity for investigation and determination of the import of what they saw. The procedures followed by the officers in the instant case were reasonable, under the circumstances, and consistent with good police practice. The Terry doctrine has been extended in this jurisdiction to automobile stops. People v. Lucero, 182 Colo. 39, 511 P.2d 468 (1973). We, therefore, conclude that the initial stop of the defendants' car by the police was proper, and, hence, does not taint the evidence thereafter seized.

We also hold that the Stone area tests for an investigatory stop were met. Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971). In Stone, we held:

'In order lawfully to detain an individual for questioning, (1) the officer must have a reasonable suspicion that the individual has committed, or is about to commit, a crime; (2) the purpose of the detention must be reasonable; and (3) the character of the detention must be reasonable when considered in light of the purpose.'

II.

The defendants contend that the shining of the flashlight into the rear seat of the Pontiac by Officer Conner was an unlawful search lacking probable cause or reasonable suspicion. We have spoken directly to this point on several occasions. Further elaboration here would serve no purpose. People v. Haggart, Colo., 533 P.2d 488 (1975); People v. Shriver, Colo., 528 P.2d 242 (1974); People v. Ramey, 174 Colo. 250, 483 P.2d 374 (1971); People v. Teague, 173 Colo. 120, 476 P.2d 751 (1970).

III.

While the defendants do not dispute the fact that the items were in plain view, they challenge the seizure of the electronic equipment and tools,...