People v. McCombs

• Decision Date: 29 January 1981
• Citation: 629 P.2d 1088
• Docket Number: 79CA0523
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carlos Ray McCOMBS, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 1088

629 P.2d 1088

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v.Carlos Ray McCOMBS, Defendant-Appellant.

No. 79CA0523.

Colorado Court of Appeals, Div. II.

Jan. 29, 1981.

Rehearing Denied March 12, 1981.

Certiorari Denied June 15, 1981.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol.Gen., James F. Carr, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Alex C. Tejada, Deputy State Public Defender, Denver, for defendant-appellant.

ENOCH, Chief Judge.

Defendant, Carlos Ray McCombs, appeals his conviction of second degree burglary.We affirm.

On October 25, 1979, at 12:15 a. m., two police officers responded to a silent burglar alarm at a Skaggs Drugstore in Aurora, Colorado.The store had closed approximately three hours earlier.When they arrived, the officers saw a car enter the area and park on an unpaved portion of a parking lot that adjoined the drugstore.They first speculated that the car contained some "parkers."After the officers found the doors of the drugstore secure from the outside, they returned to the parking lot, where they noted defendant removing items from two shopping carts and loading them into the parked car.The officers approached the defendant, and in reply to their inquiry, defendant indicated that he was loading the items into his car.Defendant was then asked to produce some identification.

During this time, one of the officers walked around the vehicle and shined his flashlight onto the shopping carts and into the car.He noted that the items in the carts, and in defendant's car, had Skaggs Drugstore price tags on them.After defendant produced some identification, the other officer shined his flashlight into defendant's vehicle and he too saw the Skaggs Drugstore price tags.Defendant gave no response when asked if the items belonged to him.He was then placed under arrest for investigation of burglary and advised of his rights.It was subsequently determined that the items had been taken from the drugstore, and apparently, a forced exit had been made from the building.

Defendant first contends that there was no basis for the officers to make an investigatory stop.We do not agree.

In order to make a valid investigatory stop:

"(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."

Stone v. People, 174 Colo. 504, 509, 485 P.2d 495, 497(1971);see alsoPeople v. Severson, 39 Colo.App. 95, 561 P.2d 373(1977).Here, the stop conforms to the requirements of Stone.Defendant's acts, in light of all the circumstances, were sufficient to arouse reasonable suspicion that he had committed a crime.Cf.Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2437, 61 L.Ed. 357(1979).Additionally, the purpose and character of the detention was reasonable.

Defendant next contends that viewing the inside of his vehicle was unreasonable and exceeded the scope of an investigatory stop.We disagree.

"It is neither against the law for a police officer to look inside a car, nor to use a flashlight to do so."People v. Haggart, 188 Colo. 164, 168, 533 P.2d 488, 491(1975).See alsoPeople v. Shriver, 186 Colo. 405, 528 P.2d 242(1974).Therefore, the subsequent seizure by the officers of the items in the car was permissible under the plain view doctrine.Haggart, supra.

we find no merit in defendant's contention that the police did not have probable cause to arrest him.Based on information and observation made before and during the investigatory stop, the officers had probable cause to arrest the defendant.

Defendant also argues that the trial court erred in admitting evidence of two experiments.We find no error.

At trial, a detective of the Aurora Police Department testified that he conducted an experiment in which he measured the time it took him to push two shopping carts from the point of the burglar's exit from the Skaggs Drugstore to the area of the parking lot where defendant had been seen.The detective also testified that, as another experiment, he measured the time it took him to walk from that point in the parking lot to a point near the defendant's apartment, get in a car, and drive back to the parking lot.These experiments were conducted and introduced to show that the time for defendant to complete the acts conducted in the experiment and arrive back in the parking lot was approximately the same time that elapsed between the sounding of the burglar alarm and the police officers' arrival on the scene.Defendant...