People v. Martinez, 90SA330

• Decision Date: 17 December 1990
• Docket Number: No. 90SA330,90SA330
• Citation: 801 P.2d 542
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. David Alan MARTINEZ, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 542

801 P.2d 542

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. David Alan MARTINEZ, Defendant-Appellee.

No. 90SA330.

Supreme Court of Colorado En Banc.

Dec. 17, 1990.

Donald E. Mielke, Dist. Atty., Donna Skinner Reid, Chief Appellate Deputy Dist. Atty., Golden, for plaintiff-appellant.

Al Cabral, Denver, for defendant-appellee.

Chief Justice ROVIRA delivered the Opinion of the Court.

The People bring this interlocutory appeal pursuant to C.A.R. 4.1, challenging the district court's order suppressing evidence of methamphetamine, which a police officer took from the defendant David A. Martinez during a pat-down search, and a statement made by the defendant. The district court ruled that although the officer had reasonable grounds to stop and search the defendant for weapons, the officer's examination of the contents of a small pouch in which the methamphetamine was kept exceeded the limits of a permissible protective search for weapons. We affirm.

I

A suppression hearing established the following facts. On March 1, 1990, Officer Loar of the Lakewood Police Department was assisting other officers in the execution of a no-knock search warrant at 1768 South Newland, Lakewood, Colorado. During the course of the search, the police found cocaine, handguns, rifles, shotguns, and knives. While the search was in progress, the defendant drove up to the house and walked to the front door. As he was about to enter the house, Loar drew his gun and ordered the defendant to stop, raise his hands, and drop to his knees. While following the officer's directions, the defendant made a sudden movement with his right hand toward his right front pocket at which time he was again ordered to raise his hands. Immediately thereafter he was handcuffed.

Loar proceeded to conduct a pat-down search for weapons. He discovered two small folding-type pocket knives, a spoon, and a pouch. Several pointed objects protruded through the pouch and the officer opened the pouch and found two sheet metal screws along with two small plastic bags containing a white, powdery substance. Loar advised the defendant that he was under arrest for possession of suspected cocaine; to which the defendant replied that it was not cocaine but "speed." A field test of the powdery substance showed a positive result for methamphetamine. The officer then conducted a routine check for outstanding warrants and obtained a driver's license status report. He was informed that the defendant's driver's license had been revoked. The defendant then stated that he thought he was a habitual traffic offender. The defendant was arrested and charged with possession of a schedule II controlled substance, namely methamphetamine, in violation of sections 12-22-310, 5 C.R.S. (1985), and 18-18-105, 8B C.R.S. (1989 Supp.), driving after habitual traffic revocation and driving under suspension, revocation, and denial. After entering a plea of not guilty, the defendant moved to suppress physical evidence taken from his person, as well as the statements made by him to the police on the basis that they were obtained pursuant to an unlawful arrest or detention.

The district court found that at no time was there probable cause to arrest the defendant, but that given the circumstances and surroundings Officer Loar had reasonable grounds to fear for his safety and that he had the right to conduct a pat-down search for weapons to ensure his safety and that of others. The trial court also found that, notwithstanding the pointed objects in the pouch, it was not reasonable for anyone to believe that there was a weapon inside. The court concluded that the officer, in opening the pouch, went beyond "what is required to protect himself and other officers to determine whether or not the defendant had weapons," and granted the motion to suppress. The People urge reversal on the ground that the police officer acted reasonably in opening the pouch taken from the defendant's pocket.

II

The test to be applied in this case is whether there was reasonable suspicion to make an investigatory stop and, if so, whether Loar's seizure of the pouch was constitutionally permissible, and whether his opening of the pouch to examine its contents exceeded the limits of a constitutionally permissible search for weapons. If an officer has a reasonable suspicion that a crime has been committed or is about to be committed, and the surrounding circumstances lend themselves to the pervasive dangerous atmosphere, then he may conduct a limited search. Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968). The justification for the search is not the preservation of evidence or the search for probable cause, but rather the need to ensure the safety of the officer and others present. Id. at 29, 38, 88 S.Ct. at 1884, 1888. This court has interpreted Terry to impose...