People v. Smith, No. 00SA47.

• Decision Date: 11 September 2000
• Docket Number: No. 00SA47.
• Citation: 13 P.3d 300
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Terry SMITH, Defendant-Appellee.
• Court: Colorado Supreme Court

13 P.3d 300

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

No. 00SA47.

Supreme Court of Colorado, En Banc.

September 11, 2000.

A. William Ritter, Jr., District Attorney, Henry R. Reeve, Deputy District Attorney, Denver, Colorado, Attorneys for Plaintiff-Appellant

Scheitler & Elio, P.C., Frank I. Scheitler, Denver, Colorado, Attorneys for Defendant-Appellee

Justice KOURLIS delivered the Opinion of the Court.

In this interlocutory appeal, the State challenges a suppression order of the trial court. The trial court held that the amount of force used by police during a traffic stop escalated the encounter into an arrest, which was not supported by probable cause. Therefore, the trial court suppressed the evidence obtained from a search of the defendant's vehicle.

We disagree with the trial court's conclusions of law. Although the police did display force, their conduct was not unreasonable in light of the circumstances the officers faced. Accordingly, we characterize this police-citizen encounter as an investigatory stop rather than an arrest. We further find that the investigatory stop met the reasonableness standards of the Fourth Amendment. As part of the stop, the police were entitled to conduct a protective search of Smith's vehicle, and the evidence at issue is admissible under the plain view doctrine. Accordingly, we reverse the trial court's suppression order.

I.

At 2:50 a.m. on March 15, 1999, Denver police officer Jones stopped a Jeep Cherokee on I-70 for a windshield obstruction violation. Jones was on solo patrol at the time. He approached the car and asked the driver and the lone occupant, Natalie Williams, for her license and vehicle registration. Williams handed the officer her license, but told him that since the car belonged to a friend, she did not have registration paperwork. Officer Jones returned to his vehicle and ran a computer check on the license plate number of the vehicle, which did not reveal any problems. However, the officer then ran a computer search on the vehicle identification number (VIN) for the Jeep and discovered that the Jeep was on record as having been stolen.

While Officer Jones was running the computer searches, he observed Williams make a call in her vehicle from a cellular phone. Shortly thereafter, a GMC Suburban with tinted windows pulled up behind Officer Jones's patrol car. The Suburban stopped one to one-half car lengths behind the officer's vehicle, and the driver left the headlights on. According to Jones, because of the headlights and the time of night, he could not see into the Suburban. Therefore, he could not determine how many people were in the vehicle. Jones testified that the Suburban's presence alarmed him, and that he feared an ambush. He also testified that in his eight years experience, no other car had pulled up directly behind him during a traffic stop. As a result, Jones radioed for backup. A second officer, Sergeant Rodarte, arrived within two to five minutes.

The defendant, Terry Smith, was the driver of the Suburban. When Rodarte arrived, Rodarte and Jones approached Smith with their guns drawn, and Rodarte yelled "forcefully and directly" at Smith to turn off the ignition and drop his keys out the window. Smith complied. During this exchange, two other officers arrived at the scene and approached Smith's vehicle.¹ Rodarte then yelled at Smith to exit the vehicle slowly keeping his hands in the air. Rodarte ordered Smith to turn around so that the officers could do a visual search for weapons. He then ordered Smith into a kneeling position with his hands behind his head. The officers commanded Smith to lie prone, handcuffed him, and took him into custody for the crime of interference with police authority, in violation of a Denver municipal ordinance. At that point, the officers reholstered their weapons. The officers stood Smith up, conducted a pat down search, and asked permission to search the Suburban, to which Smith consented. At no point after arriving at the scene did Smith make any movements or attempt to get out of the car until told to do so by the officers. Smith neither resisted the officers nor failed to comply with any of their commands.

The officers testified that they would have searched Smith's vehicle, even without his consent, under their search incident to arrest authority. The search of the Suburban revealed a loaded handgun in the center console and a substance that appeared to be crack cocaine in the overhead console.²

The State charged Smith with four counts: (1) possession with intent to distribute a controlled substance; (2) possession of a controlled substance schedule II; (3) possession of twenty-five grams or more of a controlled substance schedule II; and (4) special offender, controlled substance, deadly weapon.

Smith filed a motion to suppress. The trial court granted the motion finding that the officers' conduct amounted to an arrest without probable cause because there was no evidence that Smith had indeed interfered with the officers' conduct. In so holding, the court analyzed objective evidence of interference, not the subjective belief of Officer Jones. The court then examined whether the officers had conducted an investigatory stop, and concluded that they had not. The court found that the officers had used more force than was necessary under the totality of the circumstances, and that the use of such force converted the stop into an arrest. Because the officers arrested Smith without probable cause and searched his vehicle without his valid consent, the trial judge suppressed the evidence found in the Suburban.

The State then filed this interlocutory appeal challenging the trial judge's legal conclusion that this police-citizen encounter constituted an arrest.³

II.

We must first determine whether the police contact with Smith amounted to an arrest or an investigatory stop. We hold that under these circumstances, this police-citizen encounter is properly characterized as an investigatory stop despite the show of force and resulting seizure.

Whether an encounter is an arrest or an investigatory stop is a mixed question of law and fact. We defer to the trial court's findings of fact, but undertake de novo review of the trial court's legal conclusions. See People v. Arroya, 988 P.2d 1124, 1129 (Colo.1999).

On the spectrum of police-citizen encounters, which range from a full-scale arrest or search to a consensual encounter, an investigatory stop falls in the middle. See People v. Archuleta, 980 P.2d 509, 512 (Colo. 1999). Because an investigatory stop is an "intermediate" level of police response, it may be employed in "narrowly defined circumstances upon less than probable cause." Id. The less exacting standard of "reasonable suspicion" applies, allowing officers to stop suspects and question them or to conduct a pat down for weapons. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971). Because roadside encounters between police and suspects are recognized as being especially hazardous, when police conduct an investigatory stop in the context of a traffic stop, an officer may order the driver or passengers out of the automobile and conduct a protective search of the passenger compartment of the vehicle for weapons as long as the officer possesses a reasonable belief that the occupants pose a danger. See Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). "Such a limited intrusion is viewed as a reasonably effective method of neutralizing the risk of physical harm confronting the officer." People v. Melgosa, 753 P.2d 221, 225-26 (Colo.1988).

Furthermore, during an investigatory stop, an officer may take steps to ensure his own safety. See Archuleta, 980 P.2d at 513. This means that an officer may take physical control of or seize a suspect. See Long, 463 U.S. at 1051, 103 S.Ct. 3469. An officer may use force in detaining a suspect, and the fact that some force is used does not necessarily convert the police-citizen encounter into an arrest. See People v. Breidenbach, 875 P.2d 879, 887 (Colo.1994). Even the use of handcuffs does not automatically transform a detention into an arrest. See People v. Bland, 884 P.2d 312, 322 (Colo. 1994). Generally, "the trend developing since Terry has been to include within the rubric of investigatory stops in some circumstances `the use of handcuffs, the placing of suspects in police cruisers, the drawing of weapons and other measures of force more traditionally associated with arrest than with investigatory detention.'" Archuleta, 980 P.2d at 513 (quoting United States v. Tilmon, 19 F.3d 1221, 1224-25 (7th Cir.1994)).

In Archuleta, this court characterized a police-citizen encounter as an investigatory stop rather than an arrest when a police officer followed a fleeing suspect into a restaurant where the suspect was hiding, the officer drew his gun, and interrogated the suspect with his weapon still drawn. See 980 P.2d at 513. We held that the officer's use of his weapon did not constitute an arrest, but rather was a justifiable safety precaution under the circumstances. See id.

While we have found that physical restraint, the use of handcuffs, the drawing of weapons, and other demonstrations of force do not necessarily convert an investigatory stop into an arrest, such show of force does heighten our concern as to whether the action taken exceeds what is reasonably necessary. Moreover, the use of such force is a far greater level of intrusion. See United States v. Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir.1994). The use of physical restraint, handcuffs, and weapons in the same stop is only justified when the circumstances indicate that such force constitutes a "reasonable precaution for the protection and safety of the investigating officers." See 4 Wayne R. LaFave, Search and Seizure § 9.2(d) at 37 (3d...