People v. Padgett, 96SA420

• Citation: 932 P.2d 810
• Decision Date: 24 February 1997
• Docket Number: No. 96SA420,96SA420
• Parties: 21 Colorado Journal 290 The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jeffrey Glen PADGETT, Defendant-Appellee.
• Court: Supreme Court of Colorado

Page 810

932 P.2d 810

21 Colorado Journal 290

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jeffrey Glen PADGETT, Defendant-Appellee.

No. 96SA420.

Supreme Court of Colorado,

En Banc.

Feb. 24, 1997.

Robert R. Gallagher, Jr., District Attorney, Eighteenth Judicial District, James C. Sell, Chief Deputy District Attorney, Michael Spear, Deputy District Attorney, Englewood, for Plaintiff-Appellant.

David F. Vela, Colorado State Public Defender, David G. Smith, Deputy State Public Defender, Englewood, for Defendant-Appellee.

Justice HOBBS delivered the Opinion of the Court.

The People, pursuant to C.A.R. 4.1 and section 16-12-102(2), 8A C.R.S. (1996 Supp.), bring this interlocutory appeal challenging the order of the trial court suppressing evidence of a controlled substance, marihuana, found on the defendant. ¹ The trial court determined that the police officers did not have a reasonable and articulable basis in fact to make the investigatory stop, nor was there sufficient attenuation between the initial illegal stop and the discovery of the evidence. We agree and affirm the trial court's suppression order.

I.

At approximately 1:50 a.m. on January 18, 1996, Police Officer David Straley (Officer Straley) and Reserve Officer Todd Cope (Officer Cope) were on routine patrol near the 3800 block of South Lowell Boulevard in Sheridan. In the past, there had been a significant amount of criminal mischief and criminal trespass in this area. The officers observed two individuals walking along the sidewalk. There had been blizzard-like conditions several hours before, leaving the streets and sidewalks snowpacked and icy. As they crossed the street, one of the men stumbled. As the officers in the police vehicle approached the two men, one of the men slowed down and eventually stopped, while the other, Jeffrey Padgett (Padgett), appeared to begin walking more rapidly away from the officers.

The officers exited their vehicle. Officer Straley called out to Padgett, stating, "Excuse me, sir, I need to speak with you for just a moment, could you came [sic] back over to this area." Padgett continued walking. After Officer Straley called out a second time, Padgett slowed his pace and reluctantly walked back to where the officers were. Padgett immediately asked Officer Straley why the officers had contacted them. Officer Straley responded that he wanted to see if they were okay. He also informed them that there had been several crimes in the neighborhood ² and he wanted to find out what they were doing. At that point, Officer Straley asked the pair for identification, which was provided as requested. The officer asked both men where they were coming from and where they were going. They responded that they were coming from the corner bar and were on their way home.

Officer Straley then instructed Officer Cope to check with the Colorado Crime Information Center (CCIC) to see if there were any outstanding arrest warrants on these two individuals. While the warrants check was in progress, which took between four to fifteen minutes to complete, Padgett repeatedly inquired why he was being detained and stated that he wanted to go home. Officer Straley responded that both men could leave if they did not have any warrants. Within a few minutes the officers got a response from dispatch stating that, as to Padgett, there was a "Code 6-F," indicating the existence of possible warrants. ³

At this point, Padgett began to run. Officer Straley ordered Padgett to stop and chased him. Officer Cope was also in pursuit. Padgett ran approximately fifty yards before he stumbled and fell forward. Officer Straley caught up to him, handcuffed, and arrested him. After walking Padgett back to the patrol car, Officer Straley conducted a pat down search. He felt a large hard object tucked underneath Padgett's shirt and removed it. This object was a large plastic bag containing a brick of marihuana. Continuing the pat down search, Officer Straley found another brick of marihuana in Padgett's right front pocket. At this point, Officer Straley received confirmation that Padgett did have arrest warrants outstanding.

After Padgett was placed in the police car, Officer Cope attempted to return the identification cards, but could not find them. He searched the area where Padgett had been caught after his short flight. He found a lighter on the ground and, looking under a bus bench, found another package of marihuana.

Padgett was taken to the Sheridan Police Department, processed through the arrest procedure, interviewed, and then turned over to the Arapahoe County Detention Facility for custody on the outstanding warrants. On March 26, 1996, Padgett was charged by Felony Complaint and Information with possession of eight ounces or more of marihuana. On September 18, 1996, Padgett filed a motion to suppress the evidence, asserting the stop was illegal because police officers did not have a reasonable and articulable basis in fact to make the stop. At the conclusion of a hearing, held on November 5 and 6, 1996, the district court granted the suppression order, finding that under the totality of the circumstances the officers lacked a reasonable and articulable basis for the stop.

II.

We address three issues advanced by the prosecution: whether the contact between the officers and Padgett was consensual; whether the officers had a reasonable articulable suspicion that Padgett was committing, had committed, or was about to commit a crime; and whether there was sufficient attenuation between the initial conduct of the officers and the subsequent discovery by the officers of incriminating evidence.

Encounters between police officers and citizens in the context of suppression order cases are of three types: (1) consensual interviews; (2) investigative stops; and (3) arrests. See People v. Thomas, 839 P.2d 1174, 1177 (Colo.1992). Investigative stops and arrests are seizures and therefore implicate Fourth Amendment protections. See People v. Hill, 929 P.2d 735, 738-39 (Colo.1996). A consensual interview between a citizen and law enforcement personnel is not subject to Fourth Amendment protection. See id. Here, we must determine whether the encounter between Padgett and the police was consensual and, if not, whether a lawful investigatory stop occurred.

A.

Consensual interviews are encounters "in which no restraint of the liberty of the citizen is implicated, but the voluntary cooperation of the citizen is elicited through non-coercive questioning." People v. Trujillo, 773 P.2d 1086, 1089 (Colo.1989); see also Thomas, 839 P.2d at 1177. In Thomas, we stated:

The test for determining if the encounter is a consensual one 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.

839 P.2d at 1177-78; see also Hill, 929 P.2d at 738-39. To effect a seizure, the officer, "by means of physical force or show of authority," must in some way restrain the liberty of a citizen. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). Taking into account all of the circumstances surrounding the encounter, a consensual encounter is negated if "the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.' " Florida v. Bostick, 501 U.S. at 437, 111 S.Ct. at 2387 (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 1977, 100 L.Ed.2d 565 (1988)).

Contrary to the prosecution's assertion that the encounter between police and Padgett was a consensual interview, we conclude that the trial court did not err in finding and concluding that Padgett was not free to leave and that this encounter was not consensual in nature. See People v. Hutton, 831 P.2d 486, 489 (Colo.1992) (when the trial court's findings are sufficient and adequately supported by evidence in the record, they will not be disturbed on appeal). Officer Straley called out to Padgett but he continued walking. Not until Officer Straley called out to him a second time, did Padgett slow his pace and walk back to the officers. An individual's attempt to avoid coming into contact with a police officer does not, without more, justify an investigative detention of the individual. See People v. Rahming, 795 P.2d 1338, 1342 (Colo.1990).

The officers informed Padgett that he could not leave until an arrest warrants check was run on him: "And I told them that I would have them on their way if they didn't have any warrants." A reasonable person under these circumstances would have construed the officer's statement as an instruction to stay. Padgett was not free to depart unless and until the officers told him he could leave. A consensual encounter consists of voluntary cooperation by an individual who must be "free to leave at any time during such an encounter." Thomas, 839 P.2d at 1177. Otherwise, he is seized within the meaning of the Fourth Amendment. See id.

In Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983), the Court stated that police officers do not "violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions [or] by putting questions to him if the person is willing to listen." Here, Padgett was called back to where the officers were. He immediately asked the officers why he was being contacted and stated his desire to leave.

Officer Straley testified that he advised Padgett that he wanted to see if the two men "were okay." But he also testified that there had been several crimes in the neighborhood, and so he wanted to find out what they were doing, where they were going, and where they were coming from. He therefore asked the men for identification and then instructed Officer Cope to check with CCIC for outstanding warrants. During this...