People v. Tate, 82SA532

• Decision Date: 07 February 1983
• Docket Number: No. 82SA532,82SA532
• Citation: 657 P.2d 955
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John Allen TATE, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 955

657 P.2d 955

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John Allen TATE, Defendant-Appellee.

No. 82SA532.

Supreme Court of Colorado,

En Banc.

Feb. 7, 1983.

Stuart A. VanMeveren, Dist. Atty., Stephen J. Roy, Deputy Dist. Atty., Fort Collins, for plaintiff-appellant.

Banowetz, Liggett & Moore, Thomas H. Moore, Fort Collins, for defendant-appellee.

QUINN, Justice.

The People in this interlocutory appeal challenge the ruling of the district court suppressing a screwdriver seized by a police officer from the defendant, John A. Tate, and a statement made by him to the officer shortly after the seizure. The district court concluded that there was no probable cause to believe that the defendant committed a crime and, therefore, the defendant's arrest was unlawful and any evidence resulting therefrom must be suppressed. We reverse the suppression ruling because, in our view, the court did not apply the appropriate legal standard in resolving the suppression motion.

The defendant is charged in the Larimer County District Court with two crimes allegedly committed on June 5, 1982, in Fort Collins, Colorado. One count charges the crime of criminal attempt to commit third degree burglary, ¹ and the other alleges the offense of possession of burglary tools, consisting of a screwdriver and vending machine keys. ² Prior to trial the defendant filed a motion to suppress any evidence seized from his person and all other evidence derived therefrom on the ground that he was subjected to an unlawful arrest in violation of the United States and Colorado Constitutions. U.S. Const. Amends. IV and XIV; Colo. Const. Art. II, Sec. 7.

The evidence at the suppression hearing established the following sequence of events. On June 5, 1982, at 1:58 a.m. Officer James Vincent of the Fort Collins Police Department was dispatched to investigate a report by a security guard at the Fort Collins Municipal Golf Course that two persons were seen near the vending machines at the club house and appeared to be tampering with the machines. The officer immediately went to the area in a marked police vehicle. As he drove into the parking lot of the golf course, he was advised by radio that the persons were now running in a north-westerly direction toward a nearby cemetery. Moments later he received another radio message that one of the suspects had been apprehended at a garage near the club house. The officer went directly to that location and observed a security guard sitting on top of the defendant. The guard stated to the officer: "I've got this one. The other went towards the ball ponds."

The officer approached the defendant and conducted a pat-down search. He recovered a screwdriver, which he recognized as a prying tool commonly used in burglaries, and, after handcuffing the defendant, ³ he advised him of his Miranda rights. ⁴ The security guard identified the defendant as one of the suspects earlier seen by him near the vending machines and informed the officer that the defendant and his companion started to run as soon as the police vehicle approached the club house. The defendant, in response to the officer's request to explain his presence at the golf course, told the officer that he and his companion were just walking around the area and stopped by the machines to get a bottle of pop. When asked why he had a screwdriver on his person, the defendant stated that he "must have forgotten to take it out of his pocket earlier in the day." The officer thereafter made a cursory search of the immediate vicinity and found a ring of keys used to open vending machines.

The district court rejected the People's argument that the seizure of the screwdriver was pursuant to a lawful frisk, conducted in the course of a limited detention based upon the officer's reasonable suspicion of criminal activity. Instead, the court determined that the seizure of the screwdriver could be upheld only if the defendant had been lawfully arrested pursuant to probable cause. Concluding that probable cause to arrest did not exist, the court accordingly suppressed the screwdriver and the statement made by the defendant as the products of an unlawful arrest. ⁵ On this appeal the People argue that the court's ruling was based upon a faulty premise, in that the seizure of the screwdriver was not incident to arrest but rather was the product of a permissible protective frisk for weapons conducted during a lawful detention of the defendant. We agree with the People's argument.

The Fourth Amendment to the United States Constitution and its Colorado counterpart, Colo. Const. Art. II, Sec. 7, require that arrests be based on probable cause to believe that the person arrested has committed a crime. E.g., Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Gallegos v. People, 157 Colo. 173, 401 P.2d 613 (1965). This is not to say, however, that a police officer may not subject a person to a temporary detention, short of the traditional arrest, on less than the probable cause standard. The genesis of the rule authorizing limited intrusions into personal security on less than probable cause is Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). There the United States Supreme Court held:

"[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken." 392 U.S. at 30-31, 88 S.Ct. at 1884-85, 20 L.Ed.2d at 911.

The court in Terry carefully observed that in justifying this limited intrusion

"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.... And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" 392 U.S. at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906.

Cases subsequent to Terry make clear that intermediate forms of police response, short of the traditional arrest and the full scale search, may be employed under narrowly defined circumstances upon less than probable cause. See, e.g., Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (temporary detention of occupant of home, on less than probable cause to arrest, justified where officers had search warrant for home and confronted occupant as he was leaving home immediately before search commenced); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (special enforcement problem confronting border patrol adequate to support vehicular stop and investigation based upon agent's reasonable suspicion of illegal entry by aliens); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (officer's forcible stop of suspect justified on basis of informer's tip that suspect was armed and carrying narcotics). Three conditions, however, must exist before a person may be subjected to some form of intermediate intrusion, such as an investigatory stop or a limited search of his person: (1) there must be an articulable and specific basis in fact for suspecting that criminal activity has 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. E.g., People v. Johnson, 199 Colo. 68, 605 P.2d 46 (1980); People v. Martineau, 185 Colo. 194, 523 P.2d 126 (1974); People v. Lucero, 182 Colo. 39, 511 P.2d 468 (1973); Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971).

The suppression ruling in this case was predicated solely on the court's determination that since there was no probable cause to arrest the defendant when the screwdriver was recovered from his person, both the screwdriver and the...