People v. Smith

• Court: Colorado Supreme Court
• Writing for the Court: ERICKSON; QUINN; QUINN
• Citation: People v. Smith, 620 P.2d 232 (Colo. 1980)
• Decision Date: 10 November 1980
• Docket Number: No. 80SA86,80SA86
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Phillip SMITH, Defendant-Appellant.

Page 232

620 P.2d 232

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Phillip SMITH, Defendant-Appellant.

No. 80SA86.

Supreme Court of Colorado, En Banc.

Nov. 10, 1980.

As Modified on Denial of Rehearing Jan. 5, 1981.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., John Daniel Dailey, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Michael J. Heher, Deputy State Public Defender, Denver, for defendant-appellant.

ERICKSON, Justice.

The defendant, Phillip Smith, was convicted by a jury of the offense of aggravated robbery in violation of section 18-4-302, C.R.S. 1973 (1978 Repl.Vol. 8), and sentenced to the Colorado State Reformatory. His case is now before us on appeal. The defendant asserts the following grounds for reversal: (1) the denial of his motion to suppress certain physical evidence seized as the result of a search of the car in which defendant was a passenger; (2) admission of in-court and out-of-court identifications of the defendant; (3) failure of the trial court to adequately instruct the jury on the requisite mental state for the offense of aggravated robbery; and (4) denial of a motion for a mistrial. We affirm.

On January 2, 1977, a robbery took place at Taco John's fast-food restaurant in Longmont. Dennis Vanatta was serving customers at the counter at approximately 10:40 p. m. Among the estimated six or seven persons present at that time was a black man whom Vanatta identified as the defendant. When the defendant came in to Taco John's, he placed an order, paid his bill, and left the building with the food and the drinks which he purchased. Approximately five minutes later, he reentered the now empty restaurant and ordered an orange drink. The sale was rung up on the register, and when the cash drawer opened, the defendant said, "put the money in a bag." Vanatta testified that the defendant pointed a gun at him, and again said, "give me the money or I'll blow your head off." Vanatta complied with the demand and gave the money to the defendant. He then left the building and was not seen again by Vanatta until after the arrest occurred.

Vanatta immediately called the police and gave them a description of the suspect. He described the robber as a tall, thin, black male, approximately six feet two inches tall, in his early twenties, wearing blue pants, and a blue sweatshirt-type top with pockets and a hood which was pulled up around his head. According to the testimony of Vanatta, the lighting conditions in the restaurant were good. During both confrontations, Vanatta said that he was no more than three to ten feet away from the defendant.

Officer McCauley testified that a call on the police radio at approximately 10:45 p. m. notified him of the armed robbery and the description of the suspect. Approximately fifteen minutes later, and five blocks from Taco John's, he drove up behind and then alongside a car being slowly driven by a young black woman. Both officers knew that a very small percentage of the people in Longmont are black, and the car had out-of-county license plates. As the officer passed the car, the woman driver stared nervously and watched the police car and not the road. McCauley testified that in addition to the female driver, he also saw what appeared to be black bushy hair moving in the car. The officer also said no traffic laws were violated, the license plates were current, and the car had no visible defective parts. Based on the foregoing facts, McCauley decided to stop the car and check out the movement he had seen to determine if the suspect was hiding in the car.

McCauley made the stop and walked towards the car. When he reached the back window of the car, he observed a black male crouched on the floor in front of the front seat on the passenger side. At this point, the officer testified he observed the defendant's features and dress, and that the features and dress of the man fit the description of the suspect. He ordered the suspect out of the vehicle, searched, and arrested him. No evidence was seized as the result of this body search.

After the suspect and the driver of the car were in custody, the police searched the car at the location where it was stopped. ¹ Officer McCauley testified that his search of the front passenger side of the car disclosed $266, soft drink cups, and a paper bag with Taco John labels. Officer Mauck, who also participated in the search, testified that he found a .38 caliber pistol under the driver's seat. None of the items seized were in plain view.

Another officer arrived at the scene of the arrest, and took the suspect back to Taco John's. Vanatta testified that he was told that the police were outside and had someone that they wanted him to see. He said the defendant was sitting in the front seat of the police car. He identified the defendant as the man who had robbed him some thirty to forty minutes earlier.

I.

We begin our analysis of the defendant's claim that the initial stop was an unreasonable seizure in violation of his constitutional rights, with an examination of the rationale set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). ² In Terry, the court upheld the lawfulness of certain brief police stops based upon a standard of less than probable cause for the traditional arrest or custodial interrogation. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). Terry dealt with those situations which fall short of a "technical arrest" or a "full-blown search" but which still are subject to the Fourth Amendment requirement of reasonableness. In determining whether the police conduct was unreasonable, the Supreme Court of the United States adopted a test whereby the need to search or seize could be weighed against the invasion which the search or seizure entailed. We followed the reasoning of Terry in Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971):

"There is an area of proper police procedure in which an officer having less than probable cause to arrest nevertheless may detain an individual temporarily for certain purposes and not violate the unreasonable search and seizure limitation of the Fourth Amendment." Id. at 508, 485 P.2d 495.

At the crux of the Fourth Amendment reasonableness limitation is the requirement that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual. Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

Applying the principles of Terry and its progeny to this case, we first consider the nature and extent of the governmental interests involved in effecting the stop. Balanced against those interests, however, we consider the invasion of the defendant's constitutional rights to be free from unreasonable search and seizures. The lawfulness of the stop must finally rest upon our determination that the officer had a reasonable suspicion, based on objective facts, that the driver of the car was involved in criminal activity. ³ In this area probabilities may not be technically measured and pose practical questions of everyday life upon which reasonable and prudent men act. Consequently, each case depends upon the facts which the police are aware of, and the question of when to stop a suspect is often close and difficult to determine. ⁴

An armed robbery suspect was at large. The suspect was a young black male. Some fifteen minutes after the robbery, Officer McCauley noticed an out-of-county car being driven very slowly by a young black woman. This was approximately five blocks from the scene of the robbery. The woman appeared nervous. He also noticed what appeared to be black bushy hair moving in the car. ⁵ The governmental interest involved in effecting the stop was the possible detection of the armed robbery suspect.

No one of the foregoing facts rises to the level of reasonable suspicion of criminal activity, which is the standard by which we must judge such police conduct. See People v. McPherson, 191 Colo. 81, 550 P.2d 311 (1976); People v. Goessl, 186 Colo. 208, 526 P.2d 664 (1974). However, taken as a whole, we find that these facts justified the stop, and that the limited invasion of the defendant's constitutional rights was outweighed by the governmental interest in detecting criminal activity. See People v. Waits, 196 Colo. 35, 580 P.2d 391 (1978).

"The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good policework to adopt an intermediate response." Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921 (1922), 32 L.Ed.2d 612 (1971). Accord, People v. Waits, supra; People v. Mangum, 189 Colo. 246, 539 P.2d 120 (1975); People v. Martineau, 185 Colo. 194, 523 P.2d 126 (1974); People v. Lucero, 182 Colo. 39, 511 P.2d 468 (1973).

II.

The defendant argues that the trial court erred when it failed to suppress the items seized as the result of the search of the car following his arrest. There is no question that the arrest of the defendant was lawful and supported by probable cause. ⁶ The defendant argues, however, that because both he and the driver of the car were in custody, there were no exigent circumstances which justified the subsequent search and seizure of the items without a search warrant. ⁷ We disagree.

We recognize that, subject to only a few specially established and well-delineated exceptions, searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034...