People v. Ratcliff, 88SA351

• Citation: 778 P.2d 1371
• Decision Date: 18 September 1989
• Docket Number: No. 88SA351,88SA351
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Philander Knox RATCLIFF, Defendant-Appellee.
• Court: Supreme Court of Colorado

Page 1371

778 P.2d 1371

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Philander Knox RATCLIFF, Defendant-Appellee.

No. 88SA351.

Supreme Court of Colorado En Banc.

Sept. 18, 1989.

Barney Iuppa, Dist. Atty., and Gordon R. Denison, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.

Michael Morris, Colorado Springs, for defendant-appellee.

Chief Justice QUINN delivered the Opinion of the Court.

In this interlocutory appeal the People challenge a ruling of the district court suppressing a plastic vial containing cocaine, which a police officer took from the defendant during a pat-down search of his person, and also other physical and verbal evidence obtained subsequent to the seizure of the cocaine. The district court ruled that there was not probable cause to arrest the defendant and that, even though the officer validly stopped and temporarily detained the defendant, the officer's seizure and examination of the contents of the closed plastic vial exceeded the limits of a permissible protective search for a weapon. We affirm the suppression ruling, but do so for reasons different from those relied upon by the district court.

I.

The defendant, Philander Ratcliff, is charged with possession and distribution of a schedule II controlled substance, namely cocaine. §§ 12-22-310, 5 C.R.S. (1985 & 1988 Supp.), and 18-18-105, 8B C.R.S. (1986 & 1988 Supp.). After entering a plea of not guilty, the defendant filed a motion to suppress physical evidence taken from his person, as well as a custodial statement made by him to police, on the basis that he was subjected to an unlawful arrest or detention and that the challenged evidence was the product of unconstitutional police conduct. A suppression hearing conducted by the district court established the following facts.

At approximately 7:30 p.m. on June 2, 1988, Detective Quinton Turner of the Colorado Springs Metro Narcotics Unit was engaged in an undercover operation near a bar called the Cloud Nine Lounge in Colorado Springs. The bar was located in an area that had a history of high drug activity. As Detective Turner drove slowly past the bar in an unmarked vehicle, he saw Ernest Walker, whom he knew as a user and seller of cocaine and for whom there was an outstanding arrest warrant, standing in the area outside the bar. The defendant at this time came out of the lounge and made contact with Walker. Detective Turner described the contact as follows: the defendant walked up to Walker, and Walker extended one hand out to the defendant; the defendant then put his hand out and Walker took something from him, and the defendant, in turn, took something from Walker; as this apparent exchange took place, the defendant and Walker remained close to the side of the building, as if they were attempting to shield their conduct from view.

When Detective Turner made these observations he was approximately twenty to forty feet from the two men. Although the detective was unable to see what objects actually had been exchanged between the defendant and Walker, he believed that they had engaged in a drug transaction and radioed other officers for assistance. He wanted these officers to arrest Walker on the outstanding arrest warrant and also to make a pat-down search of the defendant to determine if he had actually received drugs from Walker.

Officers Spitzmiller and McDonald went to the parking lot of the Cloud Nine Lounge to assist Detective Turner in connection with the alleged drug transaction. The officers arrived in a police vehicle within a few minutes, and Detective Turner pointed out Walker and the defendant to the officers. As Officers Spitzmiller and McDonald entered the parking lot, the defendant began to move away from Walker. Officer Spitzmiller stopped the defendant, and Officer McDonald intercepted Walker. Officer Spitzmiller testified at the suppression hearing that he had frequently recovered weapons from suspects during investigatory stops and, hence, he conducted a pat-down search of the defendant for his own safety and also to recover any narcotics on the defendant's person before the defendant attempted to destroy them.

In conducting the pat-down search, Officer Spitzmiller asked the defendant to place his hands on the police vehicle. After the defendant complied with this request, the officer patted down the defendant and felt a "large solid object" in the defendant's pocket. Being unable to determine what the object was, Officer Spitzmiller reached into the pocket and recovered a closed plastic vial wrapped with gray duct tape. The vial had a flip-top lid and, according to the officer, was approximately three inches long, one and one-half inches wide, and one-half inch thick. The officer described the vial as "something like a Tic-Tac box"--an apparent reference to a plastic container in which Tic-Tac candies are sold.

Officer Spitzmiller acknowledged at the suppression hearing that he did not consider the vial as a threat to his own safety. Because he had no idea what might be inside the vial and could not see its contents, he opened the lid and observed "cocaine rocks" inside. The officer testified that under the circumstances he would have opened the vial regardless of what it appeared to be. Upon observing the cocaine inside the vial, Officer Spitzmiller handcuffed the defendant and placed him under arrest for possession and distribution of cocaine. The defendant was thoroughly searched at the scene of the arrest, and $186 was recovered from his pocket. Upon being transferred to the stationhouse, the defendant was advised of his Miranda rights and, after waiving those rights, admitted to Detective Turner that he had cocaine with him at the time of his arrest. ¹

At the conclusion of the suppression hearing, the district court initially denied the motion to suppress on the basis that Detective Turner's observations of the actions of the defendant and Walker outside the lounge constituted probable cause to believe that a drug transaction had taken place and thus justified the arrest of the defendant and the search of his person as incident to the arrest. ² The court also ruled that if its determination of the probable cause issue was erroneous, the seizure of the plastic vial was not justified as part of a valid "stop and frisk." The court reasoned that, although there were specific and articulable facts supporting the stop of the defendant, Officer Spitzmiller's search of the defendant's pockets for the purpose of determining if the defendant had drugs on his person was not a constitutionally reasonable purpose for a pat-down search. The court also ruled that the defendant was fully advised of his Miranda rights and knowingly and voluntarily waived those rights in admitting that he had cocaine with him at the time of his arrest. Three days after its initial ruling, the district court reconsidered the suppression motion sua sponte and granted the motion, ruling that there was insufficient evidence to support a finding of probable cause for the defendant's arrest, ³ and reaffirming its prior ruling that the seizure of the plastic vial was not part of a valid "stop and frisk."

* * *

In urging reversal of the suppression ruling, the People raise two alternative arguments. The People initially argue that Detective Turner's observations of the defendant and Walker outside the Cloud Nine Lounge constituted probable cause for the defendant's arrest and thus supported the seizure of the plastic vial from the defendant's person and the examination of its contents as a search incident to a valid arrest. The People alternatively contend that, even in the absence of probable cause to arrest, there was at the very least a specific and articulable basis in fact for stopping the defendant and conducting a pat-down search, and that the examination of the contents of the plastic vial was constitutionally justified as part of a protective search for a weapon, with the result that the additional information obtained in the course of the examination of the vial satisfied the standard of probable cause for an arrest.

II.

Both the Fourth Amendment to the United States Constitution and its Colorado counterpart, Colo. Const. art. II, § 7, require that an arrest be based on probable cause. E.g., Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); People v. Vigil, 198 Colo. 185, 597 P.2d 567 (1979); People v. Saars, 196 Colo. 294, 584 P.2d 622 (1978). The constitutional standard of probable cause serves two functions. It not only protects citizens from "rash and unreasonable interferences with privacy," but also gives "fair leeway for enforcing the law in the community's protection." Brinegar, 338 U.S. at 176, 69 S.Ct. at 1311; see People v. Hearty, 644 P.2d 302, 309 (Colo.1982).

An officer has probable cause to arrest a suspect when the officer has reasonable grounds to believe that the suspect has committed or is committing a crime. E.g., Brinegar, 338 U.S. 160, 69 S.Ct. 1302, People v. Navran, 174 Colo. 222, 483 P.2d 228 (1971). The "probable cause" standard is not to be measured by a " 'more likely true than false' level of certitude but by a common-sense, nontechnical standard of reasonable cause to believe," with due consideration being given to a police officer's experience and training in determining the significance of his observations to the ultimate issue of probable cause. People v. Melgosa, 753 P.2d 221, 225 (Colo.1988); see People v. Ball, 639 P.2d 1078, 1082 (Colo.1982). A custodial arrest based on probable cause is a reasonable intrusion and, as such, needs no additional justification for a full search of the person arrested. E.g., United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). A search incident to an arrest, therefore, "need not be limited to a mere pat-down of the arrestee's outer clothing, but...