People v. Milligan

• Citation: 77 P.3d 771
• Decision Date: 30 January 2003
• Docket Number: No. 01CA0435.,01CA0435.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David Victor MILLIGAN, Jr., Defendant-Appellant.
• Court: Court of Appeals of Colorado

77 P.3d 771

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David Victor MILLIGAN, Jr., Defendant-Appellant.

No. 01CA0435.

Colorado Court of Appeals, Div. V.

January 30, 2003.

As Modified on Denial of Rehearing April 24, 2003.

Certiorari Denied September 22, 2003.

Ken Salazar, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Elisabeth Hunt White, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, David Victor Milligan, Jr., appeals the judgment of conviction entered on a jury verdict finding him guilty of possession of a controlled substance. We affirm.

Officers responded to a female caller's complaint that an "unwanted person" named David Milligan was at the door of her apartment complex. She also reported that he drove a gray Cadillac.

The officers saw defendant standing near the door of the specified apartment and asked what he was doing there. Defendant gave his name and said he was checking on his ex-girlfriend. He also volunteered that he had outstanding warrants for his arrest and that a friend had dropped him off at the apartment.

While an officer was checking on the warrants, defendant was allowed to use his cell phone to call a friend, and during that call, an officer overheard him giving directions to his car. When defendant ended his call, officers asked defendant about the discrepancy between his statements, and defendant admitted he had driven to the scene.

Meanwhile, police dispatch informed the officers that defendant's license had been suspended and confirmed he had outstanding warrants. After receiving this information, an officer advised defendant of his rights, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and further informed him he was under arrest and his car would be towed. The car was parked several houses away from the apartment, and defendant asked officers to retrieve his fanny pack from it. The officers located the fanny pack in the car, checked it for weapons, and found none. But, when defendant's possessions were inventoried at the police station, police discovered cocaine inside the pack. The following day, after again receiving a Miranda advisement, defendant admitted to police the drugs were his.

Defendant later filed a motion to suppress the physical evidence and his statement admitting it belonged to him. The trial court denied the motion, finding that the police had properly impounded his car, that the search of his fanny pack was a proper inventory search, and that the cocaine inevitably would have been discovered in an inventory search of the car.

At defendant's jury trial, his statements and the cocaine were admitted as evidence against him.

I.

Defendant contends the trial court erred in denying his motion to suppress. He maintains that: (1) the physical evidence was obtained through an illegal investigatory stop or seizure and an illegal impoundment and inventory of his car; and (2) his statements were obtained in violation of Miranda v. Arizona, supra.

We disagree.

When we consider a trial court's suppression ruling, we defer to its findings of fact, but review de novo its conclusions of law. People v. Smith, 13 P.3d 300 (Colo. 2000). A trial court's determination whether a person was in custody for Miranda purposes is reviewed de novo. People v. Matheny, 46 P.3d 453 (Colo.2002).

A.

We first reject defendant's contention that his initial contact with police was an investigatory stop or a seizure made without articulable suspicion or probable cause.

The United States and Colorado Constitutions afford protection from unreasonable searches and seizures. See U.S. Const. amend. IV; Colo. Const. art. II, § 7.

Three types of police-citizen encounters have been recognized: (1) consensual interviews, (2) investigatory stops, and (3) arrests. Arrests and investigatory stops are seizures that implicate constitutional protections. Investigatory stops are justified by reasonable and articulable suspicion of criminal activity, while lawful arrests require probable cause. An investigatory stop is less intrusive than an arrest and is considered reasonable within the meaning of the Fourth Amendment if it is supported by "some minimal level of objective justification" designated "reasonable articulable suspicion." People v. Polander, 41 P.3d 698, 703 (Colo.2001)(quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990).)

A consensual interview is not a seizure and occurs when a police officer seeks the voluntary cooperation of a citizen by asking noncoercive questions. People v. Johnson, 865 P.2d 836 (Colo.1994). An officer's act of approaching an individual in a public place or asking for identification does not, in itself, constitute a seizure within the meaning of the Fourth Amendment. People v. Paynter, 955 P.2d 68 (Colo.1998).

Here, defendant's initial encounter with police constituted a consensual interview and not an investigatory stop or seizure. But, when the officers learned defendant had outstanding warrants against him, the encounter became an investigatory stop that was justified by defendant's voluntary statement. See People v. Polander, supra; People v. Padgett, 932 P.2d 810 (Colo.1997)

. Once the warrants were confirmed, the officers had probable cause to arrest defendant. People v. Hillyard, 197 Colo. 83, 589 P.2d 939 (1979).

Hence, defendant's initial encounter did not constitute an illegal investigatory stop or seizure.

B.

Defendant next contends the trial court erred in denying his motion to suppress two statements he made to police before his Miranda advisement and the evidence obtained as a result of those statements. The first statement is his admission that he drove his car to the scene. The second statement is his request to the officers to retrieve his fanny pack from the car. Defendant maintains that his first statement led to the officers' decision to impound his car, which in turn led to his request that officers retrieve his fanny pack from the car and to discovery of the cocaine. We disagree.

1.

Initially, we address the People's contention that defendant challenges these two statements for the first time on appeal. We disagree.

The People correctly observe that defendant's pretrial motion to suppress did not mention these two statements or claim they were obtained in violation of Miranda. However, because the trial court addressed defendant's statements and the Miranda issue at the suppression hearing, we conclude the issue was properly preserved for appeal. See People v. Cagle, 751 P.2d 614 (Colo.1988)

.

2.

Turning to the merits of the Miranda issue, we agree with the trial court's ruling denying defendant's motion to suppress his two statements.

Miranda does not apply unless the defendant was in custody when the statement was made and the statement was obtained as a result of police interrogation. People v. Haurey, 859 P.2d 889 (Colo.1993).

In People v. Matheny, supra,

the supreme court discussed the manner in which an appellate court should review a trial court's custody determination. Earlier cases described the test of custody as whether a reasonable person in the suspect's position would have considered himself or herself deprived of freedom of action in any significant way. See People v. Hamilton, 831 P.2d 1326 (Colo.1992).

However, Matheny requires a greater deprivation of freedom, explaining that a court should engage in "[a]n objective assessment of whether a reasonable person in the suspect's position would believe himself to be deprived of his freedom of action to the degree associated with a formal arrest." People v. Matheny, supra, 46 P.3d at 467 (emphasis added)(quoting People v. Taylor, 41 P.3d 681, 691 (Colo.2002)).

Interrogation includes express questioning and any words or actions by the police, other than those normally attendant to arrest and custody, that the police should know are reasonably likely to elicit an incriminating response from the suspect. People v. Haurey, supra.

As to defendant's first statement, the trial court found defendant was in custody, but was not formally under arrest when the officer asked him, "Did you drive here?" The trial court then proceeded to analyze the Miranda issue.

We conclude, however, that because a reasonable person in defendant's position would not have believed himself or herself to be deprived of his or her freedom of action to the degree associated with a formal arrest, and because the trial court expressly found defendant was not yet formally arrested, defendant was not in custody for Miranda purposes when the officer asked that question. See People v. Matheny, supra. Accordingly, Miranda has no applicability to that statement by defendant.

As to defendant's second statement asking the officers to retrieve his fanny pack from the car, we agree with defendant that he was in custody when he made it. At that time, the officers had verified the warrants against him. See People v. Padgett, supra.

However, we conclude the statement was not a result of police interrogation. Once the police decided to impound defendant's vehicle and informed him of that fact, he asked them to retrieve his pack. The police did not pose any question to defendant that prompted the statement about the fanny pack, nor did they make any statements or take any actions that they should have known were reasonably likely to elicit an incriminating response. See People v. Haurey, supra, 859 P.2d at 894

. Thus, we conclude there was no Miranda violation as to that statement.

II.

Defendant also contends the trial court erred in concluding the items discovered in his car were admissible under the inevitable discovery rule. We disagree.

The trial court found that once defendant was arrested and the officers became aware his car was...