People v. Melton

• Decision Date: 12 February 1996
• Docket Number: No. 95SA358,95SA358
• Citation: 910 P.2d 672
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Johnny Maurice MELTON, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 672

910 P.2d 672

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Johnny Maurice MELTON, Defendant-Appellee.

No. 95SA358.

Supreme Court of Colorado En Banc.

Feb. 12, 1996.

John Suthers, District Attorney, Ann C. Joyce, Deputy District Attorney, Colorado Springs, for Plaintiff-Appellant.

Terry L. Perlet, Colorado Springs, for Defendant-Appellee.

Justice KOURLIS delivered the Opinion of the Court.

The prosecution brings this interlocutory appeal pursuant to section 16-12-102, 8A C.R.S. (1995 Supp.), and C.A.R. 4.1 challenging the trial court's order suppressing crystal methamphetamine obtained during a search of the defendant Johnny Maurice Melton. The trial court found that the police officers' initial contact with Melton constituted an investigatory stop that was not justified by reasonable suspicion of criminal activity. We hold that the initial encounter between the police and Melton was not an investigatory stop and that therefore the police did not need reasonable suspicion in order to approach and talk to Melton. Accordingly, we reverse the trial court's order of suppression and remand the case for further proceedings consistent with this opinion.

I.

Johnny Maurice Melton was charged with possession of a schedule II controlled substance (crystal methamphetamine) with intent to distribute, pursuant to sections 18-18-405(2)(a)(I), 8B C.R.S. (1995 Supp.), and 18-18-204, 8B C.R.S. (1995 Supp.). Melton filed a motion to suppress all evidence and statements made by him. The trial court conducted a suppression hearing at which Officer Crestin Shields and Officer Wade Lerfald testified to the following facts.

On May 7, 1995, the Colorado Springs Police Department received a tip that drugs were being sold at a house on Dauntless Court. To investigate the tip, Officer Shields and his partner set up surveillance on the house. During surveillance, Officer Shields observed two people drive up to the residence and leave after a few minutes. Shields recognized the individuals from arrests on other drug charges in the past. Shields' partner stopped the two people a short time later but found no drugs.

The next day, after acquiring further information, Shields visited one of the two individuals he had seen at Dauntless Court the day before. ¹ Shields obtained a search waiver from R.M. and searched his house. Shields found a pipe that tested positive for crystal methamphetamine. He then arrested R.M. for possession of a controlled substance.

After his arrest, R.M. told the police that he knew an individual named "J" or "Johnny" who had a large quantity of crystal methamphetamine. R.M. said he had been at Johnny's house approximately one week before the arrest and had seen assault type weapons and a golf ball size rock of crystal methamphetamine. R.M. further told police that Johnny lived at 98 Saddle Mountain Road in Rockrimmon.

Approximately ten minutes after hearing this information, Officer Shields, Officer Lerfald, and Officer Terry Mason went to 98 Saddle Mountain Road. All three officers were in uniform and travelled in separate police cruisers. When they arrived at the house, they saw a man, later identified as Melton, and two women standing in the front yard.

Officer Shields and the other officers approached Melton. Officer Shields asked Melton if he lived in the house. Melton said, "Yes." Shields then asked Melton if his name was "J" or "Johnny." Melton answered that his name was "Johnny."

After learning this information, Shields asked Melton to step to the curb by the police cruiser and then instructed Lerfald to do a pat down search of Melton. Officer Shields testified that he believed a pat down search was necessary because of the information that Melton owned assault weapons. As Officer Lerfald was performing the pat down search, he discovered a fanny pack and asked Melton to remove it. Lerfald testified that the fanny pack was very full and that he felt a hard round object inside it. Both Shields and Lerfald asked Melton what was inside the pack but Melton did not answer. Lerfald then opened the pack, looked inside, and found a hard round object that appeared to be a drug. ² Shields then placed Melton under arrest.

After hearing this evidence, the trial court granted Melton's motion to suppress. The trial court analyzed the encounter between the police and Melton by separating it into two stages. First, the trial court considered whether Officer Lerfald's search of Melton and of the fanny pack was permissible. The trial court found that once the police officers knew Melton's identity, they had a reasonable and articulable suspicion that Melton might be armed and dangerous that justified the search of the fanny pack.

Second, the trial court analyzed the initial contact with Melton, when the officers approached him and asked his name and address. The court found that when they approached Melton, the police officers could not have had a reasonable suspicion that Melton had engaged in criminal activity. In particular, until the police officers asked Melton if his name was "J" or "Johnny," the police officers had no reason to believe that the individual they observed standing in the yard was involved in criminal activity. Because the trial court found that the police officers' initial contact with Melton was not justified by reasonable suspicion, it granted Melton's motion to suppress.

The prosecution requested that the trial court reconsider its ruling. It argued that the police officers' initial contact with Melton was a consensual encounter and that the Fourth Amendment to the United States Constitution was not implicated. The trial court agreed to reconsider its ruling and continued the proceedings. ³ The trial court determined that the encounter between Melton and the police was an investigatory stop, unsupported by reasonable suspicion, and not a consensual encounter. It therefore reaffirmed its suppression order.

The prosecution then filed the present interlocutory appeal. ⁴ We now hold that the police officers' initial contact with Melton was not a seizure or an investigatory stop under the Fourth Amendment to the United States Constitution and Article II, section 7 of the Colorado Constitution, but rather was a consensual interview. ⁵ As such, the police did not need a reasonable suspicion of criminal activity in order to interview Melton. Therefore, we reverse the trial court's order of suppression and remand the case for further proceedings.

II.

The Fourth Amendment to the United States Constitution and Article II, section 7 of the Colorado Constitution provide that the people shall be secure in their persons from unreasonable searches and seizures. "The Fourth Amendment does not proscribe all contact between police and citizens, but is designed 'to prevent arbitrary and oppressive interference with the privacy and personal security of individuals.' " INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984) (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976)). Thus, only when police-citizen contact impermissibly intrudes upon an individual's personal security or privacy are the United States or the Colorado Constitutions implicated. In Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968), the Supreme Court explained the difference between a seizure and other police-citizen encounters when it stated: "Obviously, not all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred." See also United States v. Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.) (explaining that only when an individual is seized is there any foundation for invoking constitutional safeguards).

Case law has identified three types of police-citizen encounters: 1) arrest, 2) investigatory stop, and 3) consensual interview. People v. T.H., 892 P.2d 301, 303 n. 3 (Colo.1995); People v. Trujillo, 773 P.2d 1086, 1089 (Colo.1989). The first two, an arrest and an investigatory stop, are seizures and implicate constitutional protections. Therefore, they must be justified by probable cause and reasonable suspicion of criminal activity, respectively. People v. Johnson, 865 P.2d 836, 842 (Colo.1994). The third, a consensual interview, is not a seizure and thus does not implicate the protections of the Fourth Amendment and Article II, section 7. Id.; see generally 4 Wayne R. LaFave, Search & Seizure § 9.3 (3d ed. 1996) (discussing police-citizen encounters that do not rise to the level of an investigatory stop).

During a consensual encounter, a police officer seeks the voluntary cooperation of an individual by asking non-coercive questions. People v. Thomas, 839 P.2d 1174, 1177 (Colo.1992). The individual is free to leave at any time during such an encounter or to ignore the police officer's questions. Id. Hence, the defendant is not seized within the meaning of the Fourth Amendment. Id.; see also Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983) (opinion of White, J.) (stating that law enforcement officers do not violate the Fourth Amendment by approaching an individual and asking him if he is willing to answer some questions).

The test for determining if an encounter between a police officer and an individual is consensual is "whether a reasonable person under the circumstances would believe he or she was free to leave and/or to disregard the official's request for information." Thomas, 839 P.2d at 1177-78; see also Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2388-89, 115 L.Ed.2d 389 (1991); Delgado, 466 U.S. at 215, 104 S.Ct. at 1762. This is an objective determination and it must be made based on the...