People v. Morales, 96SA413

• Decision Date: 03 March 1997
• Docket Number: No. 96SA413,96SA413
• Citation: 935 P.2d 936
• Parties: 21 Colorado Journal 314 The PEOPLE of the State of Colorado, Petitioner-Appellant, v. Filiberto Palma MORALES, Respondent-Appellee.
• Court: Colorado Supreme Court

Page 936

935 P.2d 936

21 Colorado Journal 314

The PEOPLE of the State of Colorado, Petitioner-Appellant, v. Filiberto Palma MORALES, Respondent-Appellee.

No. 96SA413.

Supreme Court of Colorado En Banc.

March 3, 1997.

A. William Ritter, Jr., District Attorney, Second Judicial District, Nathan B. Coats, Chief Deputy District Attorney, Denver, for Petitioner-Appellant.

David F. Vela, State Public Defender, Lisabeth Perez Castle, Deputy State Public Defender, Denver, for Respondent-Appellee.

Justice KOURLIS delivered the Opinion of the Court.

The People bring this interlocutory appeal to challenge a suppression order entered by the District Court of the City and County of Denver. The order suppressed cocaine found taped to the body of defendant Filiberto Palma Morales as well as Morales's statements to law enforcement officers made during and after a pat-down search. The trial court held that the cocaine was discovered as the result of an illegal investigatory stop that was not based upon an articulable suspicion of criminal activity and that the statements were tainted by the circumstances of the stop. Because we conclude that the law enforcement officers did have a reasonable and articulable basis for suspecting criminal activity at the time they stopped Morales, we reverse the trial court's order and remand for further proceedings consistent with this opinion.

I.

On June 26, 1996, Morales arrived at Denver International Airport (DIA) on a flight from Los Angeles ¹ via Phoenix. Officers Kenneth Gurule and Dennis Petersohn, Denver Police Department detectives assigned to the narcotics interdiction unit at DIA, were dressed in plain clothes and were monitoring the flight. Officer Gurule had been assigned to airport narcotics interdiction for approximately three years and had monitored several flights per day during that time. The officers observed Morales and his copassengers deplane. Morales initially began walking westbound on the concourse as if to leave the gate area and then made a U-turn and began walking eastbound toward a dead-end. Morales turned again, approached Officer Gurule and asked, "How do I get out of here?" Officer Gurule directed Morales toward the main terminal. Morales thanked Gurule and walked away. Morales began to walk in the direction indicated by the officer; however, he then attempted to leave the concourse by way of an employee exit marked "Restricted Access." Officer Gurule informed Morales that he could not exit through that door. At this time, the officers identified themselves as police officers and showed Morales their identification. Officer Gurule offered to help Morales return to the main terminal and Morales thanked him.

The officers and Morales began walking toward the train to the main terminal. As they walked, Officer Gurule asked if he could look at the airline ticket that Morales had in his hand. Morales handed Officer Gurule the ticket. Officer Gurule noticed that the ticket bore the name of Filiberto Morales but the baggage claim ticket stapled to the inside of the airline ticket jacket was in the name of Tige Yeargin. He also noticed that the ticket had been purchased with cash. Officer Gurule asked Morales for identification. Morales provided the officers with a valid California identification card and a social security card marked "Valid For Work Only With INS Authorization," both in his name. He indicated that he did not have any additional immigration papers with him. Officer Gurule testified that he then suspected Morales might be in the country illegally. After Officer Petersohn wrote down Morales's name, date of birth, and social security number, he returned the cards to Morales.

Morales and the officers engaged in casual conversation as they rode the train to the main terminal and walked to the baggage carousel. In the course of that conversation, Morales informed the officers that he was from Mexico and that he was in Denver to visit his brother and possibly to look for work.

After they reached the carousel, Officer Gurule waited with Morales for his bag and Officer Petersohn went to an immigration office near the carousel to ascertain whether Morales was in the country legally. While they were awaiting the bag, Officer Gurule noticed that Morales was wearing baggy, oversized clothing and that he had a bulge in his clothing around the neck. He mentioned it to Morales. Morales straightened out the collar of a shirt that he was wearing underneath his exterior clothing to remove the bulge.

When Morales's bag did not arrive, Officer Gurule accompanied him to the baggage clerk for the purpose of filling out a claim report. Morales told the baggage clerk that he had checked the bag at the curb, whereas the clerk indicated that the claim check was generated at the counter inside the terminal. According to Officer Gurule, Morales was indifferent about the lost bag, indicating, "That's okay, I will get it later," although he had earlier indicated that his work clothes were in the bag. After Morales had spoken with the baggage clerk, Officer Gurule offered to allow Morales to use a phone to call his brother. Officer Gurule led Morales to the immigration office to use the phone, but, because the office was locked, the two returned to the pay phones located between the office and the carousel.

Morales and Officer Gurule both made phone calls using pay phones next to one another. Officer Petersohn returned and informed Officer Gurule that he was unable to contact any immigration officials. Morales told the officers that he had not reached his brother, thanked them, and said that he would find another way home from the airport.

At that point, Officer Gurule asked Morales if he had ever been arrested. Morales answered that he had been arrested for a drunk driving charge. Officer Gurule next asked Morales if he had ever been arrested for any drug-related offenses. Morales answered that he had not, but that he had smoked marihuana in the past. Officer Gurule then asked Morales if he was carrying any illegal drugs. Morales replied that he was not carrying any drugs. Officer Gurule testified that he did not believe Morales's answer to his question. The officer asked Morales if he would consent to a pat-down search. Morales consented to the search. At the time Morales gave his consent, the officers had been with him for approximately thirty-five to forty minutes.

During the course of the pat-down, the officers felt a package concealed under Morales's clothes. Officer Gurule asked Morales what the package was and Morales said, "You got me. It's my polvo." ² Morales then said it was his coca. The officers arrested Morales, placed him in handcuffs, and took him to their office where they recovered the substance, which later tests showed to be cocaine, and read him his Miranda rights. Morales waived his Miranda rights and made incriminating statements to the officers.

Following the filing of charges, ³ Morales brought a motion to suppress the cocaine and his statements. The trial court held that when Morales thanked the officers after the phone call and informed them that he would find another way home from the airport, the officers' further contact with Morales changed from a consensual encounter to an investigatory stop. The trial court found that such investigatory stop occurred in the absence of an articulable suspicion of criminal activity and therefore violated the constitutional prohibition against unreasonable searches and seizures. Thus, the trial court granted the motion to suppress.

II.

Our jurisprudence on searches and seizures is well developed. With respect to the issue before us, we view the United States and Colorado Constitutions as coextensive and therefore follow United States Supreme Court precedent in identifying three types of police-citizen encounters: (1) consensual interviews; (2) investigatory stops; and (3) arrests. See People v. Cascio, 932 P.2d 1381, 1384-85 (Colo.1997) (consensual encounter with occupants of parked vehicle); People v. Johnson, 865 P.2d 836, 842 (Colo.1994) (consensual encounter at airport); People v. Thomas, 839 P.2d 1174, 1177 (Colo.1992) (investigatory stop of moving vehicle followed by consensual encounter). Investigatory stops and arrests are seizures and therefore implicate the guarantees contained in the Fourth Amendment to the United States Constitution and Article II, section 7 of the Colorado Constitution. See People v. Melton, 910 P.2d 672, 676 (Colo.1996). An investigatory stop must be supported by an articulable suspicion of criminal activity, and an arrest by probable cause to believe criminal activity has occurred or is occurring. Id. A consensual interview does not need to be justified by either probable cause or reasonable suspicion of criminal activity. Id.

In this case, the trial court found that the encounter between Morales and the officers was a consensual interview ⁴ up to the time when Morales completed his phone call and informed the officers that he was leaving. Although we agree that the character of the encounter changed, we disagree with the trial court's conclusion that the investigatory stop was impermissible.

The officers' actions prior to the time at which Morales completed his phone call were entirely within the scope of a consensual interview. They identified themselves and displayed their badges; they asked to examine Morales's identification and airline tickets; and they asked where he lived and why he was in Denver. See Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991) (stating that a seizure does not occur "when police ask questions of an individual, ask to examine the individual's identification, and request consent to search his or her luggage--so long as the officers do not convey a message that compliance with their requests is required"); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983) (holding that...