People v. McPherson

• Decision Date: 01 June 1976
• Docket Number: No. 26416,26416
• Citation: 191 Colo. 81,550 P.2d 311
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Tony Dallas McPHERSON, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 311

550 P.2d 311

191 Colo. 81

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v.Tony Dallas McPHERSON, Defendant-Appellant.

No. 26416.

Supreme Court of Colorado, In Department.

June 1, 1976.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Janet Lee Miller, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Lee Belstock, Deputy State Public Defender, Denver, for defendant-appellant.

LEE, Justice.

Tony Dallas McPherson(defendant) appeals from his conviction of possession of marijuana.C.R.S.1963, 48--5--2.¹We reverse the conviction.

On the night of January 26, 1973, three Pueblo police officers in an unmarked patrol car put a house under surveillance in response to repeated telephone calls from an anonymous informant that its occupants might be involved in narcotics trafficking.A warrant had been obtained to search the house, but it had not yet been executed.Approximately half an hour after the surveillance had commenced, defendant emerged from the house carrying a brown paper sack.Defendant got into his vehicle, which was parked in front of the house, and drove off.Their interest being aroused, the officers followed defendant for about eight blocks.They then turned on their red light and pulled defendant over to see who he was and what he was doing.

As defendant was pulling over, the officers noticed that he made a movement with his arm as if to put something under the driver's seat.

After stopping, Officer Jordan walked over to defendant's car on the left side and asked for his driver's license.As Jordan approached, defendant got out of the car to meet the officer, and, though the evidence is conflicting on this point, defendant apparently left the car door open as he produced his license.

After checking the license, Jordan shined his flashlight into the interior of the car.He testified that he was able to observe the brown paper sack underneath the left front seat.He was also able, he said, to detect a small hole in the sack out of which a plastic baggie was protruding some two inches.At this point, defendant was advised of his rights.Jordan pulled the sack out from under the seat, opened it, and found a number of small plastic bags containing a green substance which appeared to be, and was later demonstrated to be, marijuana.Defendant was then formally placed under arrest.No pat-down search of defendant was conducted.

The evidence was undisputed as to the following facts: that defendant was not known to the police officers and had no record of past criminal conduct; that defendant was followed solely because he had been in the particular house which was under surveillance; that the officers did not know if any criminal activity was actually going on inside the house; that while driving away from the house defendant had committed no traffic violations of any sort; and that the reason for stopping him was to find out who he was and what he was doing, to see if something could be found that might have come from the house under surveillance.

Officer Jordan testified on cross-examination as follows:

'Q Now, you said that you observed a party carrying a sack as they left that house; is that right?

'A That is correct.

'Q.Were they carrying that sack under their arm or in their hand; how were they carrying it?

'A.Like a person would carry a lunch sack, just in their hand walking.

'Q And then the car made a U-turn and left that area where the house was?

'A That is correct.

'Q And at the time that car left, you had no reason for stopping the car at that time; is that correct?

'A Not at that time; no, sir.

'Q No offense had been committed?

'A No, sir.

'Q You had no reason to suspect that the person driving that car was involved in any unlawful activity?

'A No, sir.

'Q And likewise, when you started following that car, you had no reason to believe that the person was involved in any unlawful activity; is that correct?

'A That is correct, sir.

Defendant filed his motion to suppress, which was denied.Defendant contends that upon the foregoing facts there was no probable cause for his apprehension and arrest, and that the resultant search and seizure were illegal.The People respond that the Stone-area test was satisfied, SeeStone v. People, 174 Colo. 504, 485 P.2d 495, and that the paper sack was in plain view, once defendant got out of his car leaving the door open.

We agree with defendant that he was improperly stopped and that the motion to suppress should have been granted.

I.

The People contend that the stopping of defendant and the demand for his driver's license were permitted by what is now section 42--2--113, C.R.S.1973, which requires that licenses be displayed to peace officers upon demand.Also cited are People v. Andrews, 173 Colo. 510, 484 P.2d 1207, andMartinez v. People, 169 Colo. 366, 456 P.2d 275.None of this authority supports the People's position.

We do not believe that the legislature intended the statute to confer upon a police officer unlimited discretionary authority to stop any car at any time for any reason as long as he asked contemporaneously for display of a driver's license.A construction of the statute which would give to police officers such carte blanche authority would be inconsistent with section 16--3--103, C.R.S.1973, which specifically limits an officer's authority to stop persons for investigation in the absence of probable cause to arrest.The clear intent of section 42--2--113 is simply to permit the officer to demand the license of the driver whose vehicle has been stopped for an otherwise proper purpose.This view is consistent with the foregoing decisions.

We said in Martinez, supra, that

'* * * In our view, the suspicious movements of the (defendant's) vehicle and the nature of the locality (a high-crime area) justified the police in stopping the vehicle to make an identification inquiry.In this regard, see (section 42--2--113) which requires an operator of a motor vehicle to display his operator's license upon demand by a police officer.'

The Andrews case dealt with the constitutionality of a police roadblock where all vehicles were stopped in order to check safety equipment, brakes, license plates, and drivers' licenses.We held that such an inconvenience was not unreasonable in light of the police power to protect the welfare of the general public.We specifically noted that this type of roadblock was not merely a ruse or a guise to conduct searches of cars.

In the present case, none of the suspicious circumstances, such as found in Martinez, are revealed in the record.Nor, unlike in Andrews, was there any suggestion that defendant was the subject of a generalized safety stop.Quite the contrary, it is clear that he was singled out for stopping because he had been in the house under surveillance.

The demand for defendant to present his license was proper only if the officers properly stopped him in the first place.

II.

The People do not contend that there was initially probable cause to arrest defendant.SeeGallegos v. People, 157 Colo. 173, 401 P.2d 613.They do contend, however, that it was reasonable to suspect that defendant had committed or was about to commit a drug-related offense, justifying a temporary detention under Stone v. People, 174 Colo. 504, 485 P.2d 495.The underlying premise of this decision, that a well-founded suspicion justifies an officer's...