People v. Ortega, No. 01SA70.

• Decision Date: 01 October 2001
• Docket Number: No. 01SA70.
• Citation: 34 P.3d 986
• Parties: PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Christina ORTEGA, Defendant-Appellee.
• Court: Colorado Supreme Court

34 P.3d 986

PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Christina ORTEGA, Defendant-Appellee.

No. 01SA70.

Supreme Court of Colorado, En Banc.

October 1, 2001.

Frank J. Daniels, District Attorney Twenty-First Judicial District, Brian J. Flynn, Deputy District Attorney, Grand Junction, CO, Attorney for Plaintiff-Appellant.

Colleen B. Scissors, Grand Junction, CO, Attorney for Defendant-Appellee.

Justice RICE delivered the Opinion of the Court.

This case arises out of a routine weapons and narcotics interdiction that led to the arrest of Defendant, Christina Ortega. The state filed this interlocutory appeal pursuant to C.A.R. 4.1 and section 16-12-102(2), 6 C.R.S. (2000), for review of the trial court's order suppressing evidence against Defendant.¹ The trial court found that evidence against Defendant had been unlawfully obtained without probable cause in violation of Defendant's Fourth Amendment rights. U.S. Const. amend. IV. Specifically, the court determined that drug task force officers had seized Defendant's suitcase by taking possession of it, inspecting it, and altering it. Because this seizure was unlawful, according to the court, Defendant's consent to search the suitcase and her statement made to police were tainted by a prior illegality. Hence, the court suppressed the contents of the suitcase as well as Defendant's statement.

Contrary to the trial court's ruling, we hold that although the officers' conduct resulted in a seizure of Defendant's suitcase, probable cause was not required for the seizure. Instead, we hold that the officers' actions amounted to a temporary, investigative detention of property under United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), requiring reasonable suspicion and not probable cause. Moreover, under the facts of this case, we conclude that the officers had reasonable suspicion for the investigative detention. Since the seizure was lawful, Defendant's consent to search her suitcase and her statement made to police were not attributable to a prior illegality. Accordingly, we now order that the trial court vacate its order barring the contents of the suitcase and the Defendant's statement to police.

I. FACTS AND PROCEDURAL HISTORY

The drug interdiction occurred at a Greyhound Bus depot in Grand Junction, Colorado. The Greyhound Bus Lines administration gave two drug task force officers permission to inspect luggage and talk to passengers. Defendant's bus, traveling from Los Angeles, California, stopped at the depot for routine maintenance and servicing. After the passengers exited the bus, and while the bus was being serviced in a garage, the officers opened the bus's luggage compartment to inspect the luggage and conduct a dog "sniff screen." During this inspection, the officers noted several "indicators" suggesting that Defendant's suitcase contained illegal narcotics. According to the officers, the suitcase emitted a strong chemical odor; was relatively new and expensive; was unusually heavy; had a large lock; and had no name tag identifying its owner. Although the dog did not alert the officers to the presence of drugs, the officers remained suspicious. They suspected that the chemical odor was being used to mask the odor of drugs and reduce the effectiveness of sniff screens.

The officers planned a ruse aimed at identifying the suitcase's owner. One of the officers put on a Greyhound uniform. After the bus had been moved back outside and the passengers had re-boarded, the officer removed Greyhound's claim tag from Defendant's suitcase and carried the suitcase from the garage back to the bus. While the bus driver was contacting the dispatch center, the officer boarded the bus and presented the suitcase to the passengers, informing them that the claim tag was missing and requesting that the owner of the luggage come with him so that a new claim tag could be attached. Defendant stepped forward and agreed to accompany the officer back to the garage so that a new claim tag could be attached. Once in the garage, the officer identified himself as a law enforcement officer and asked Defendant if she would consent to a search of the suitcase. Defendant agreed and opened the suitcase. The officer discovered several brick-shaped objects and asked Defendant if they were drugs. Defendant admitted that it was cocaine and informed the officers that she was being paid between five and six thousand dollars to transport the cocaine. The officers escorted Defendant to the police station where Defendant signed a form waiving her rights and gave a statement to the officers. Defendant was arrested for possession with the intent to distribute a schedule II controlled substance, possession of a schedule II controlled substance, and a special offender charge regarding the importation of a schedule II controlled substance into Colorado.

Before trial, Defendant filed a motion to suppress and a suppression hearing was held. At the conclusion of this hearing, the trial court issued an oral ruling granting the motion. Although the court found that the dog sniff of Defendant's suitcase was not a search, it ruled that the suitcase was unlawfully seized in violation of Defendant's Fourth Amendment rights. Specifically, the court determined that the officers seized Defendant's suitcase "by taking possession of it, inspecting it," and "alter[ing] it" by removing a claim tag. (R. at vol. II, p. 109.) The court found that the seizure was unlawful because probable cause was absent. The court did not make a finding of whether the seizure was an investigative detention supported by reasonable suspicion. The court did note that although the chemical odor being emitted from the bag "might have constituted a reasonable suspicion, ... [it was] not enough to create probable cause to believe that the bag contained evidence of a crime or contraband." (R. at vol. II, p. 108.) With respect to the officers' other observations, the court noted that "the size of the bag, the weight of the bag, the lock [on] the bag, the lack of a luggage I.D. or name, are insignificant [sic] grounds to cause reasonable suspicion." (R. at vol. II, p. 108.)

After concluding that the officers' actions constituted an unlawful seizure, the court next found that Defendant's consent to search the suitcase was ineffective since it was attributable to a prior illegality, the unlawful seizure. Further, it ruled that the statement Defendant made to police was also obtained in violation of Defendant's rights under the Fourth Amendment, since it too had arisen out of the unlawful seizure of Defendant's suitcase. Accordingly, the trial court suppressed the contents of Defendant's suitcase and her statement to police.

II. ANALYSIS

A. SEIZURE OF DEFENDANT'S SUITCASE

In reviewing suppression appeals, we recognize that a "court's findings of historical fact are entitled to deference by a reviewing court and will not be overturned if supported by competent evidence in the record." People v. Quezada, 731 P.2d 730, 732 (Colo.1987). In reviewing a court's conclusions of law, however, we apply a de novo standard of review to ascertain whether its legal conclusions are supported by sufficient evidence and whether it has applied the correct standard. People v. Rivas, 13 P.3d 315, 319 (Colo.2000); People v. Winpigler, 8 P.3d 439, 444 (Colo.1999) (a trial court's legal conclusions are subject to de novo review).

Here, the state challenges the trial court's conclusion that the drug task force officers seized Defendant's suitcase without probable cause by removing the claim tag from it, by inspecting it, and by taking possession of it.² We now review whether the officers' conduct resulted in an unlawful seizure of Defendant's suitcase. Because the issue of whether an unreasonable seizure occurred is a question of law, our review is de novo. People v. Hopkins, 870 P.2d 478, 482 (Colo.1994).

1. REMOVAL OF CLAIM TAG FROM DEFENDANT'S SUITCASE

The Fourth Amendment to the United States Constitution provides for "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures...."³ U.S. Const. amend. IV. The Supreme Court has defined seizure of property to mean a "meaningful interference with an individual's possessory interests" in property. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); accord Place, 462 U.S. at 707-08,

103 S.Ct. 2637 (property is seized when a police officer exercises control over the property by removing it from an individual's possession); Hale v. Henkel, 201 U.S. 43, 76-77, 26 S.Ct. 370, 50 L.Ed. 652 (1906) (a seizure "contemplates a forcible dispossession of the owner"). In this context, no seizure occurs when an officer merely picks up an individual's property to look at it because this interference with the individual's possessory interest is not meaningful. Arizona v. Hicks, 480 U.S. 321, 324, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). We also note that whether law enforcement officers' conduct results in a seizure of a defendant's property is a fact-sensitive inquiry. Florida v. Bostick, 501 U.S. 429, 435-39, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (the determination of whether a particular investigative strategy used to interdict drugs at a bus depot or airport is a seizure is a fact-sensitive inquiry).

In this case, the court's ruling that the officers seized Defendant's suitcase was based in part on its finding that they altered the suitcase by removing the claim tag attached to it. Specifically, the trial court found that Defendant had an expectation of privacy in the claim tag, and that its removal caused a seizure of the suitcase. We disagree. Neither the United States Supreme Court nor this court has held that the removal of a bus company's claim tag constitutes a seizure under the Fourth Amendment.

It is well established that travelers have a reasonable expectation of privacy...