People v. Scheffer, No. 06CA0780.

Docket NºNo. 06CA0780.
Citation224 P.3d 279
Case DateApril 02, 2009
CourtCourt of Appeals of Colorado
224 P.3d 279
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Daryl J. SCHEFFER, Defendant-Appellant.
No. 06CA0780.
Colorado Court of Appeals, Div. VII.
April 2, 2009.

[224 P.3d 282]

John W. Suthers, Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge J. JONES.


Defendant, Daryl J. Scheffer, appeals the judgment of conviction entered on jury verdicts finding him guilty of possession of more than one gram of a schedule II controlled substance (methamphetamine), possession of one gram or less of a schedule I controlled substance (heroin), tampering with physical evidence, possession of one ounce or less of marijuana, and possession of drug paraphernalia. We affirm.

I. Background

After defendant purchased a "large amount" of iodine from a feed store, a store employee called the police because defendant was not a regular customer and the employee was suspicious because iodine can be used to manufacture methamphetamine. The store employee described the purchaser as a male with scraggly hair, wearing a dark blue or black coat, and carrying a backpack or bag. A police dispatcher relayed the report and description to Officer Roe, and dispatched him to contact the purchaser.

Officer Roe subsequently contacted defendant, who was walking along a street near the feed store carrying a bag. The officer asked defendant a number of questions, and in the course of the encounter searched defendant and his bag. The searches revealed a number of items, including drugs and drug paraphernalia.

The People charged defendant with—and a jury convicted him of—the five counts noted above. The court sentenced defendant to six years in the custody of the Department of Corrections on the possession of methamphetamine conviction, and to lesser concurrent terms on the other two felony convictions (possession of heroin and tampering with physical evidence).

II. Discussion
A. Motion to Suppress

Prior to trial, defendant moved to suppress all evidence that Officer Roe obtained from his bag and person and all of his statements, claiming: (1) the stop was an invalid investigatory stop because Officer Roe lacked reasonable suspicion to believe that he had committed an offense; (2) the arrest was invalid because the officers lacked probable cause to arrest him; (3) the searches of his bag and person were illegal because he did not consent to the searches; and (4) his statements were improperly obtained because he did not receive a prior advisement under Miranda v.

224 P.3d 283

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Following an evidentiary hearing, the district court denied the motions, finding and concluding that: (1) the encounter was consensual until the moment the officers formally arrested defendant, and therefore the absence of reasonable suspicion did not require suppression of the evidence; (2) the officers had probable cause to arrest defendant for possession of drug paraphernalia at the point Officer Roe found a pop can bottom with burnt residue, syringes, and a digital scale in defendant's bag; (3) defendant voluntarily consented to the searches of his bag and person; and (4) defendant's statements were not the product of custodial interrogation, and therefore could be used by the prosecution as evidence notwithstanding the absence of a prior Miranda advisement.

On appeal, defendant does not challenge directly the court's conclusion that the officers had probable cause to arrest him. He does, however, challenge the court's other conclusions. We reject each challenge in turn.

1. Standard of Review

In reviewing a district court's ruling on a motion to suppress evidence, we defer to the district court's findings of historical fact but review its legal conclusions de novo. People v. King, 16 P.3d 807, 812 (Colo. 2001); People v. Flowers, 128 P.3d 285, 287 (Colo.App.2005). We must "`ascertain whether the trial court's legal conclusion[s][are] supported by sufficient evidence and whether the trial court applied the correct legal standard.'" King, 16 P.3d at 812 (quoting People v. Owens, 969 P.2d 704, 707 (Colo.1999)); see also People v. Brandon, 140 P.3d 15, 18 (Colo.App.2005).

2. Facts

Officer Roe was the sole witness at the suppression hearing. The district court apparently found Officer Roe's testimony credible. Defendant's counsel did not challenge that testimony: the resolution of defendant's motions turned on the legal effect of what were essentially undisputed facts. Those facts, as testified to by Officer Roe, were as follows.

While driving near the feed store, Officer Roe saw defendant walking on the sidewalk. He parked his car, got out, approached defendant, and asked defendant if he could speak to him. Officer Roe, who was in uniform, asked defendant to set down his bag. Defendant complied. Officer Roe then asked defendant if he had come from the feed store and purchased iodine. Defendant responded affirmatively to both questions. By this time, Officer Fell had arrived to provide backup, and he stood about six feet behind Officer Roe.

Defendant said that he bought the iodine because he worked with horses and his boss asked him to buy it. Officer Roe then asked defendant for consent to search his bag for drugs, and defendant verbally agreed. Because defendant kept putting his hands in his pockets, Officer Roe became uncomfortable. Officer Roe asked defendant if he had any weapons. Defendant responded that he had a knife. Officer Roe then asked defendant for permission to pat him down for weapons. Defendant consented. During the pat-down search, Officer Roe found a knife, a pill bottle (which had defendant's name on it), and small canisters in defendant's pockets. Officer Roe set the unopened pill bottle on the ground. Defendant handed the canisters to Officer Roe, and he set them down next to the pill bottle.

Officer Roe then searched defendant's bag. Therein, he found part of a soda can with burnt residue on it; two syringes, both of which contained brown liquid (which Officer Roe believed to be heroin); iodine; lighter fluid; horse mane and tail moisturizer; rolling papers; and a digital scale. Defendant told Officer Roe that he was diabetic, and that he used the syringes to inject insulin. Officer Roe, who had seen insulin before, did not think the liquid in the syringes looked like insulin. Out of concern for his safety, Officer Roe asked defendant to remove the syringes from the bag. Defendant removed one, but then dropped it back in the bag. The officer asked to see defendant's arms, defendant voluntarily showed his arms, and the officer observed "fresh track marks," which,

224 P.3d 284

based on his experience with his stepfather (a diabetic), he thought to be inconsistent with insulin use.

Officer Roe then asked defendant for permission to search his person for drugs. Defendant gave him permission. Officer Roe found razor blades and a bindle containing an unknown substance. At that point, the officers arrested defendant and seized his bag.

3. Consensual Encounter

Defendant contends that the district court erred in not suppressing all evidence obtained as a result of Officer Roe's searches of his bag and person because the encounter was not consensual and Officer Roe seized him without reasonable suspicion in violation of the Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution. We disagree.

There are three categories of encounters between police and citizens: (1) arrests; (2) investigatory stops; and (3) consensual interviews. People v. Paynter, 955 P.2d 68, 72 (Colo.1998). Because arrests and investigatory stops are seizures, they implicate the search and seizure protections of the Fourth Amendment and article II, section 7. People v. Morales, 935 P.2d 936, 939 (Colo.1997); People v. Valencia, 169 P.3d 212, 217 (Colo. App.2007). "In contrast, a consensual encounter—a contact in which the voluntary cooperation of a citizen is elicited by police through noncoercive questioning—is not a seizure, and thus, does not implicate constitutional search and seizure protections." Valencia, 169 P.3d at 217 (citing People v. Jackson, 39 P.3d 1174, 1179 (Colo.2002), abrogated in part on other grounds by Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007); and People v. Cervantes-Arredondo, 17 P.3d 141, 146 (Colo.2001)).

A police officer may stop an individual and ask him questions without the encounter necessarily constituting a seizure. See Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (a seizure does not occur "when police ask questions of an individual, ask to examine the individual's identification, and request consent to search his or her luggage—so long as the officers do not convey a message that compliance with their requests is required"); People v. Trujillo, 773 P.2d 1086, 1089 (Colo.1989) (defining "consensual encounter" as "that 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"). Moreover, a police officer may ask an individual questions about criminal conduct without transforming a consensual interview into an investigatory stop. See People v. Johnson, 865 P.2d 836, 843 (Colo. 1994) (encounter was consensual where officers approached the defendant and, after asking for his airline ticket and driver's license, asked him if he was carrying any narcotics or large sums of money); People v. Thomas, 839 P.2d 1174, 1178 (Colo.1992) (encounter between an officer and the defendant was consensual even after the officer began to ask questions about criminal behavior). However, "[a] consensual interview can escalate into an investigatory stop and...

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10 practice notes
  • Applicant v. Falk, Civil Action No. 13-cv-03102-WJM
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • 8 Abril 2015
    ...of fact to be resolved by the district court based on the totality of the circumstances. Castro, 159 P.3d at 600; People v. Scheffer, 224 P.3d 279, 284(Colo. App. 2009). We will overturn the district court'sPage 14 ruling on voluntariness only if it is clearly erroneous or not supported by ......
  • People ex rel. K.D.W., Court of Appeals No. 17CA1122
    • United States
    • Colorado Court of Appeals of Colorado
    • 23 Julio 2020
    ...of encounters between police and citizens: (1) arrests; (2) investigatory stops; and (3) consensual interviews." People v. Scheffer , 224 P.3d 279, 284 (Colo. App. 2009). Only arrests and investigatory stops implicate the search and seizure protections of the Fourth Amendment and article II......
  • People v. Berdahl, No. 11CA0423.
    • United States
    • Colorado Court of Appeals of Colorado
    • 25 Octubre 2012
    ...findings of historical fact but review its legal conclusions de novo. People v. King, 16 P.3d 807, 812 (Colo.2001); People v. Scheffer, 224 P.3d 279, 283 (Colo.App.2009). We must determine whether the trial court's legal conclusions are supported by sufficient record evidence and whether th......
  • People v. Durapau, No. 06CA2677.
    • United States
    • Colorado Court of Appeals of Colorado
    • 12 Abril 2012
    ...no error. Because this question involves statutory interpretation, we review the district court's decision de novo. People v. Scheffer, 224 P.3d 279, 287 (Colo.App.2009). In interpreting a statute, our primary responsibility is to effectuate the General Assembly's intent. Whitaker v. People......
  • Request a trial to view additional results
10 cases
  • Applicant v. Falk, Civil Action No. 13-cv-03102-WJM
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • 8 Abril 2015
    ...of fact to be resolved by the district court based on the totality of the circumstances. Castro, 159 P.3d at 600; People v. Scheffer, 224 P.3d 279, 284(Colo. App. 2009). We will overturn the district court'sPage 14 ruling on voluntariness only if it is clearly erroneous or not supported by ......
  • People ex rel. K.D.W., Court of Appeals No. 17CA1122
    • United States
    • Colorado Court of Appeals of Colorado
    • 23 Julio 2020
    ...of encounters between police and citizens: (1) arrests; (2) investigatory stops; and (3) consensual interviews." People v. Scheffer , 224 P.3d 279, 284 (Colo. App. 2009). Only arrests and investigatory stops implicate the search and seizure protections of the Fourth Amendment and article II......
  • People v. Berdahl, No. 11CA0423.
    • United States
    • Colorado Court of Appeals of Colorado
    • 25 Octubre 2012
    ...findings of historical fact but review its legal conclusions de novo. People v. King, 16 P.3d 807, 812 (Colo.2001); People v. Scheffer, 224 P.3d 279, 283 (Colo.App.2009). We must determine whether the trial court's legal conclusions are supported by sufficient record evidence and whether th......
  • People v. Durapau, No. 06CA2677.
    • United States
    • Colorado Court of Appeals of Colorado
    • 12 Abril 2012
    ...no error. Because this question involves statutory interpretation, we review the district court's decision de novo. People v. Scheffer, 224 P.3d 279, 287 (Colo.App.2009). In interpreting a statute, our primary responsibility is to effectuate the General Assembly's intent. Whitaker v. People......
  • Request a trial to view additional results

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