People v. Perez

• Decision Date: 22 October 1992
• Docket Number: No. 90CA0865,90CA0865
• Citation: 852 P.2d 1297
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Tomas Balbino PEREZ, Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

Page 1297

852 P.2d 1297

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Tomas Balbino PEREZ, Defendant-Appellant.

No. 90CA0865.

Colorado Court of Appeals,

Div. IV.

Oct. 22, 1992.

Rehearing Denied Nov. 19, 1992.

Certiorari Denied May 24, 1993.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Roger G. Billotte, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Dennis W. Hartley, P.C., Dennis W. Hartley, Colorado Springs, for defendant-appellant.

Opinion by Judge JONES.

Defendant, Tomas B. Perez, appeals the judgment of conviction entered after he was found guilty, in a trial to the court, of possession of a controlled substance by a special offender. He argues that his conviction was erroneously obtained with evidence that should have been suppressed. We affirm.

Defendant purchased five one-way airline tickets at the Colorado Springs Airport for a flight departing to Los Angeles the next morning. An airline counter employee reported defendant's purchase to the police department, relating that defendant, a black man, had acted nervous, had been reluctant to provide names for the tickets, spoke with a foreign accent, and paid for the tickets with 90 one-dollar, five-dollar, and twenty-dollar bills. Because the clerk's description of the purchase was consistent with a drug courier profile, several police officers were directed to be at the airport prior to defendant's scheduled departure time to determine if there were any other characteristics that would match those of a person involved in illegal activity.

Approximately ten minutes before his flight's scheduled departure, defendant arrived at the airport in a red vehicle along with four women, all of whom exited the vehicle with only carry-on luggage. Defendant then drove to the long-term parking lot and parked the vehicle before returning to the terminal. Airline employees indicated to the three police officers located at the terminal entrance that defendant was the person who had purchased the tickets the previous day. In addition, one of the officers, a detective, thought that he recognized defendant as an individual on whom the department had an outstanding arrest warrant.

A second police officer asked the companions of defendant for identification and then walked them to a seating area near where the detective was standing with a third officer. When the defendant approached the seating area, the detective informed him that he was a police officer and asked him for identification. Defendant stated that his name was Tomas Perez. The detective again asked defendant for identification, at which time another officer reported that the tickets for the five individuals were in the name of Belz.

Defendant indicated that his wallet was in his briefcase, which he picked up and carried a few paces to a small waiting area where he sat down in a chair. He placed the briefcase on his lap, facing him, and opened the case about two inches, sliding his hand inside. The detective, who testified that he thought defendant might be reaching for a gun, then took two or three steps toward defendant and grabbed the lid of the briefcase and pulled it open while stepping around the side of defendant. The detective picked up the briefcase by the lid and saw that defendant had his hand on a wallet and also observed that the case contained several bundles of United States currency. The officer then set the briefcase down on the floor.

Defendant withdrew several pieces of identification from his wallet and stacked them on top of it. The detective reported that: "The black male stood up at this time in front of [me] in a threatening manner and [handed me] a Colorado identification card." The card pictured defendant and the name on it was Tomas Perez.

The detective, who stated that he thought he had seen defendant remove two Colorado driver's licenses from his wallet, asked defendant for additional identification. The detective testified that defendant shielded his wallet "and was twisting and turning from me." On conflicting testimony as to what happened next, the trial court found that defendant had shoved into the detective, and then started pushing and pulling against him. A uniformed officer was called over to assist the detective, and defendant was placed under arrest for interfering with a police officer.

Defendant was found to have been carrying identification under names other than Tomas Perez. Incident to arrest, the officers searched defendant, and removed a bundle of cash and a safety deposit box key from his pockets, as well as his briefcase, from which they obtained another safety deposit box key as well as thirty-three to thirty-six thousand dollars in cash. The officers then had a narcotics trained dog sniff the items of luggage and the dog "alerted" on the briefcase containing the cash.

Certain officers also, at that time, proceeded to the parking lot where they observed, through the front windshield of the vehicle that defendant had been driving, a plastic bag of a white powdery substance on the console. The officers obtained a search warrant for the vehicle and seized cocaine from the console, from an imitation coffee can, and from an oil can with a false bottom, in addition to safety deposit box keys from under the floor mat. The police then secured search warrants for several local financial institutions relative to the safety deposit box keys.

Defendant moved to suppress the evidence seized by virtue of the police officers' search of his person, his briefcase, and his vehicle, primarily on the grounds that the evidence was obtained as the result of an illegal arrest. Following a hearing, the trial court denied defendant's motions to suppress.

I.

Defendant contends that the initial stop by the police officers was constitutionally invalid because they lacked probable cause to seize him and that the trial court thereby erred in denying his motion to suppress the evidence thereafter obtained. The People respond that the stop was justified because the police had reasonable suspicion to conduct a limited investigative stop. We agree with the People that the initial stop was justified.

Moreover, the record reflects that there was sufficient evidence for the trial court to determine that the officers possessed the requisite reasonable suspicion necessary to expand the scope of the investigative stop. Thus, the stop was constitutionally valid, and the trial court did not err in denying defendant's motion to suppress evidence.

A police officer may make a limited intrusion into an individual's personal security on less than probable cause when three conditions exist: (1) there must be an articulable and specific basis in fact for suspecting that criminal activity has taken place, is in progress, or is about to occur; (2) the purpose of the intrusion must be reasonable; and (3) the scope and character of the intrusion must be reasonably related to its purpose. People v. Rahming, 795 P.2d 1338 (Colo.1990). See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In determining whether these conditions exist, the critical focus centers upon whether there existed specific, articulable facts known to the officer immediately prior to the intrusion which, taken together with rational inferences from these facts, created a reasonable suspicion of criminal activity which justified the intrusion into defendant's personal security. People v. Rahming, supra; People v. Mascarenas, 726 P.2d 644 (Colo.1986).

As the trial court found, the police knew several facts about defendant and his activities that were consistent with a "drug courier profile," which is employed by law enforcement agencies, and which also had independent evidentiary value. The...