People v. Revoal

• Citation: 269 P.3d 1238,2012 CO 8
• Decision Date: 13 February 2012
• Docket Number: No. 11SA280.,11SA280.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellant v. Anthony Michael REVOAL, Defendant–Appellee.
• Court: Supreme Court of Colorado

2012 CO 8

269 P.3d 1238

The PEOPLE of the State of Colorado, Plaintiff–Appellant

v.Anthony Michael REVOAL, Defendant–Appellee.

No. 11SA280.

Supreme Court of Colorado, En Banc.

Feb. 13, 2012.

Eighteenth Judicial District, Carol Chambers, District Attorney, Andrew Cooper, Chief Deputy District Attorney, David C. Jones, Senior Deputy District Attorney, Centennial, CO, Attorneys for Plaintiff–Appellant.

Douglas K. Wilson, Public Defender, Lindsay G. Gray, Deputy State Defender, Centennial, CO, Attorneys for Defendant–Appellee.

Justice HOBBS delivered the Opinion of the Court.

¶ 1 In this interlocutory appeal, the prosecution challenges an order of the Arapahoe County District Court granting the defendant's motion to suppress evidence. The order suppressed evidence of marijuana seized from the defendant, as well as the defendant's statements to the investigating officer. ¹

¶ 2 The investigating officer initially observed the defendant, Anthony Michael Revoal, at 11:30 p.m. standing to the side of a closed sandwich shop, then walking across a parking lot to the side of a liquor store while looking left and right, as if “watching for something,” which the officer considered suspicious. After continuing to observe Revoal begin to walk behind the liquor store, the officer pulled his patrol vehicle over to make contact with him. When Revoal saw the patrol vehicle, he turned and began walking away from the vehicle. Revoal complied with the officer's instructions to stop. The officer informed Revoal that he was going to frisk him and asked if Revoal had anything illegal on his person. Revoal replied, “my right front pant pocket.” The officer removed marijuana, and also found additional marijuana and a scale containing marijuana residue upon further search.

¶ 3 The trial court suppressed the marijuana evidence and Revoal's statements to police because the facts and circumstances the investigating officer knew at the time of the intrusion did not satisfy the threshold constitutional test for reasonable suspicion.

¶ 4 We affirm the suppression order. We hold that the facts and circumstances the officer knew at the time of the intrusion, viewed either individually or in conjunction with each other, did not amount under the totality of the circumstances to reasonable suspicion sufficient to justify the officer's investigatory stop of Revoal.

I.

¶ 5 On March 26, 2011, Officer Jonathan McCants was on routine patrol in an area of Aurora, Colorado, which at the time had experienced a recent history of robberies. At approximately 11:30 p.m., McCants observed Revoal standing on the side of a closed Subway sandwich shop, looking “left to right as if he was looking for something or watching for something.” McCants testified this consistent with the behavior of someone staking out a business or scanning for police. Revoal then proceeded to walk across a parking lot to stand on the side of an open liquor store and continued to look left and right. McCants then observed Revoal begin to walk behind the liquor store, where it was dark. ² At that point, McCants pulled the patrol vehicle over and exited the vehicle to make contact. When Revoal saw the patrol car, he turned and walked in the opposite direction.

¶ 6 McCants directed Revoal to stop, come towards him, and sit on the curb; Revoal complied. Following standard procedure, McCants radioed for backup. While waiting for a cover officer to arrive, he asked Revoal what he was doing in the area; Revoal responded that he was waiting for a ride. When backup arrived, McCants informed Revoal that he was going to conduct a Terry frisk of his person, and asked if he had anything illegal. Revoal responded, “my right front pant pocket.” McCants reached into the pocket and pulled out a plastic grocery bag, which he found contained marijuana. A more thorough search revealed another plastic bag with marijuana, and a digital scale containing marijuana residue. Revoal explained that he sold marijuana because he was out of work and needed to pay for “filings and school fees.”

¶ 7 The prosecution charged Revoal with one count of possession with intent to manufacture or distribute marijuana in an amount less than five pounds.³ Revoal moved to suppress the marijuana and scale on the grounds that the police did not have reasonable suspicion to justify the investigatory stop. Revoal also moved separately to suppress his statements to police as a violation of his Miranda rights. The trial court suppressed all evidence, including the marijuana and Revoal's statements, for lack of reasonable suspicion to conduct the stop.⁴ We agree.

II.

¶ 8 We hold that the facts and circumstances the officer knew at the time of the intrusion, viewed either individually or in conjunction with each other, did not amount under the totality of the circumstances to reasonable suspicion sufficient to justify the officer's investigatory stop of Revoal.

A. Standard of Review

¶ 9 We review a trial court's suppression order with deference to the trial court's findings of historical fact and will not overturn them if supported by competent evidence in the record. People v. Castaneda, 249 P.3d 1119, 1122 (Colo.2011). However, whether the trial court applied the correct legal standards to the facts is a question of law we review de novo. Id. Our analysis is “not constricted by only those facts that were the subject of the trial court's order; we also consider the undisputed facts evident in the record.” People v. Elmarr, 181 P.3d 1157, 1161 (Colo.2008). We apply a totality of the circumstances standard to suppression-order cases. People v. Canton, 951 P.2d 907, 910 (Colo.1998).

B. Applicable Law

¶ 10 The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. U.S. Const. amend. IV (“The right of people to be secure ... against unreasonable searches and seizures, shall not be violated.”); Colo. Const. art. II, § 7 (“The people shall be secure ... from unreasonable searches and seizures.”); Terry v. Ohio, 392 U.S. 1, 8, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A warrantless search and seizure is unreasonable unless it is justified by one of the few, specifically established exceptions to the Warrant Clause of the Fourth Amendment. People v. Greer, 860 P.2d 528, 530 (Colo.1993). A warrantless, investigatory stop is permitted if three conditions are met:

(1) the officer must have a reasonable suspicion that criminal activity has occurred, is taking place, or is about to take place; (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. Padgett, 932 P.2d 810, 814–15 (Colo.1997) (internal quotations omitted). Only the first condition is at issue here.

¶ 11 In determining whether an investigatory stop is valid, a court must take into account the facts and circumstances known to the officer at the time of the intrusion. Id. at 815. In order to justify an investigatory stop, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. 1868. The officer's “unarticulated hunch” that a criminal act has occurred is not sufficient. Greer, 860 P.2d at 530.

C. Application to This Case

¶ 12 Here, the facts and circumstances the police knew at the time of the intrusion were: (1) it was 11:30 p.m.; (2) robberies had recently occurred in the area; (3) Revoal was standing on the side of a closed Subway, looking left to right; (4) Revoal walked to the side of an open liquor store, continued looking left to right, then walked toward the back of the liquor store, where it was dark; and (5) Revoal turned and walked away from McCants when he observed the patrol vehicle. We conclude that these facts, viewed together in light of the officer's training and experience, did not amount to reasonable suspicion sufficient to justify the investigatory stop.

¶ 13 In Greer, we held that a close conversation between two individuals in a parking lot adjacent to a bar well known for narcotics sales, where one of the individuals was observed putting currency into his pocket, did not justify a stop. 860 P.2d at 530–32. In Padgett, the investigating officer observed the defendant and an acquaintance walking down the street at 1:50 a.m. in an area where there had been a significant amount of criminal mischief. 932 P.2d at 812. When the police vehicle approached, the defendant walked rapidly away from the officers. Id. We also held the stop in that case lacked reasonable suspicion. Id. at 816.

¶ 14 In contrast, in People v. Ratcliff, we held an investigatory stop was justified where a detective testified to observing a known user and supplier of drugs, who had an outstanding arrest warrant, walk up to another individual in a known drug area and simultaneously exchange objects. 778 P.2d 1371, 1378–79 (Colo.1989). Similarly, in Canton, we upheld a stop in which the investigating officer, in response to an anonymous tip, observed a large group of males gathered in a known drug area. 951 P.2d at 907, 911. Upon seeing the patrol car, most of the men fled, and the officer observed the defendant holding a large roll of bills. Id. at 907.

¶ 15 This case is closer to Greer and Padgett than to Ratcliff and Canton. Here, as in Greer and Padgett, the police observed a man late at night in an area that had...