People v. Thomas

Decision Date09 November 1992
Docket NumberNo. 92SA121,92SA121
PartiesPEOPLE of the State of Colorado, Plaintiff-Appellant, v. Kelly R. THOMAS, Defendant-Appellee.
CourtColorado Supreme Court

Peter F. Michaelson, Dist. Atty., Fifth Judicial Dist., Titus D. Peterson, Deputy Dist. Atty., Breckenridge, for plaintiff-appellant.

Richard A. St. Denis, Breckenridge, for defendant-appellee.

Justice MULLARKEY delivered the Opinion of the Court.

The defendant, Kelly Thomas, was arrested after a warrantless search of his car during a routine traffic stop. He was charged with Unlawful Possession of a Controlled Substance, Schedule II; Possession of Marihuana; Motor Vehicle Financial Responsibility Act suspension; Driving a Vehicle without Insurance; and Possession of Paraphernalia. 1 The defendant then moved to suppress the drug paraphernalia found on his person, the statements made before the discovery of drugs in the car, the drugs found there, and his post-arrest confession.

The district court granted the motion to suppress in part, and the People brought this interlocutory appeal pursuant to C.A.R. 4.1, asserting that the defendant's consent to search the car and his statements were made knowingly, intelligently and voluntarily. As a result, the People argue that the district court erred in granting the motion in part. We agree in part and disagree in part.

I.

On July 16, 1991, the arresting officer, Carl Zellars of the Summit County Sheriff's Office, was driving northbound on Highway 9 into Frisco in Summit County, Colorado, when he observed the defendant driving a gray Chevrolet with a temporary sticker which appeared to have been altered. He pulled the defendant over to investigate, and was told that a car dealer had altered the sticker. The officer verified this statement through papers in the defendant's possession.

In addition, the officer ran a check on the defendant's license and found that it was under a financial responsibility act suspension. He then issued a warning for the altered temporary sticker and cited the defendant for no proof of insurance and for driving under suspension. He advised the defendant that he was free to go; however, the officer retained the suspended license and instructed the defendant not to drive due to the suspension.

At this time, the officer, armed and in uniform, told the defendant that he would like to ask him a couple of questions. This was due to the officer's belief that the defendant was "nervous," since he had been pacing up and down and licking his lips. The defendant consented.

First the defendant was asked if he had any illegal weapons or contraband on him, and he replied "no." Then he was asked if he understood what illegal contraband was. When he answered that he didn't, the officer proceeded to explain what it was. The defendant was then asked if he minded if the officer were to search his person or vehicle for any contraband. According to the officer, the defendant consented to the searches.

The officer directed the defendant to empty out his pockets and then asked if it was okay to pat him down. Again, the defendant consented. The officer felt an object in the defendant's left pants pocket, which proved to be a pot (i.e. marihuana) pipe.

The officer called for a backup to watch the defendant while the search of the car would be conducted. At this point the defendant was advised that he was not under arrest, but was being detained. The officer told the defendant that if nothing else was found on him or in the car, the defendant would just receive a ticket for possession of drug paraphernalia.

The officer testified that, at this time, the defendant was not free to go and that he was definitely going to take "enforcement action." The officer stated that the defendant then again consented to a search of his car, at which time he asked the defendant if he had any drugs in the car and was told that there was some marihuana in a backpack. The officer then told the defendant something like, "Don't lie to me because I'm going to search anyway," or "You'd better not be lying to me." The defendant then admitted that there was also some cocaine in the backpack. It was then that the officer finally advised the defendant of his Miranda 2 rights. The officer testified that the defendant understood those rights and consented in writing to a search of his car.

The officer then searched the vehicle and found marihuana and cocaine in a backpack. Following the discovery, the defendant agreed to write out a statement detailing what had occurred as well as the fact that the drugs were his. The statements made before the discovery of the drugs, the drugs and paraphernalia and the post-arrest statements were the subject of the motion to suppress.

In granting the defendant's motion in part, the district court found that once the defendant was free to go, he engaged in a consensual interview and consented to a pat-down of his person. As a result, the pot pipe was admissible evidence. The evidence seized during the search of his car and his incriminating statements made thereafter, however, were suppressed by the court as taken in violation of his rights under Miranda.

II.

The question we address today is whether the trial court applied the correct standards in determining that the search of the defendant's car and the taking of his incriminatory statements violated the rights guaranteed to him under the Fourth and Fifth Amendments of the United States Constitution. Because we conclude that the trial court improperly analyzed the car search, we remand that issue for further findings of fact by the court. We affirm the suppression of the defendant's statements.

A.

There are three basic categories of citizen encounters with law enforcement officials: consensual interviews or encounters, investigative stops or detentions, 3 and arrests. People v. Anthony Trujillo, 773 P.2d 1086, 1089 (Colo.1989). The last two categories are seizures within the scope of the Fourth Amendment. This case involves all three of these categories, beginning with an investigative detention which then became a consensual encounter and ended as an arrest.

The statutory authority for an investigative stop is section 16-3-103(1), 8A C.R.S. (1986), which provides that, "A peace officer may stop any person who he reasonably suspects is committing, has committed or is about to commit a crime and may require him to give his name and address, identification ... and an explanation of his actions." Under this statute, the officer here had authority to stop the defendant, since he had a reasonable suspicion that the temporary sticker had been altered, which would constitute a misdemeanor traffic offense. § 42-3-122(2)(b), 17 C.R.S. (1992 Supp.). Upon investigation, he discovered that the sticker had been altered, but that the alteration had been done by the dealer.

With the information obtained during the stop, the officer had probable cause to charge the defendant with traffic code violations for driving without insurance and driving with a suspended license, and he did so, without arresting the defendant. The officer had no reasonable suspicion or probable cause to believe that the defendant was committing, had committed, or was about to commit any other crime. Therefore, after the ticket was issued, the investigative traffic stop was over. At this point, our analysis moves on to the consensual encounter.

A consensual encounter consists of the voluntary cooperation of an individual to the non-coercive questioning by an officer. The individual is free to leave at any time during such an encounter, and, therefore, he is not "seized" within the meaning of the Fourth Amendment. See Anthony Trujillo, 773 P.2d at 1089; Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16. The test for determining if the encounter is a consensual one is whether a reasonable person under the circumstances would believe he or she was free to leave and/or to disregard the official's request for information. See INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984) (citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)). A reasonable person in the defendant's position would have known that he was free to go because the officer so informed the defendant, and the defendant conceded that he knew this in his testimony. The officer testified that he tried to make people in this sort of situation feel "comfortable" and the defendant agreed that he did feel "comfortable" at that point in time. The defendant chose not to leave but rather acquiesced in the officer's request to respond to some questions. Therefore, the trial court was correct in finding this encounter to be entirely consensual.

From the evidence before it, the trial court agreed with the People and found, although the defendant testified to the contrary, that the defendant gave his consent to have his person searched. Findings of fact by the trial court, including the determination that consent was given and such consent was voluntary, which are supported by competent evidence in the record will not be disturbed on appeal. People v. Hutton, 831 P.2d 486, 488 (Colo.1992); People v. Cummings, 706 P.2d 766, 769 (Colo.1985). Therefore we affirm the trial court's finding that the pot pipe was admissible, since it was discovered as a result of this consensual search.

B.

Once the pot pipe was found, however, the defendant was in custody. "A person obviously is 'in custody' when that person has been subjected to the constraints associated with a formal arrest." People v. Julian Trujillo, 784 P.2d 788, 791 (Colo.1990). The test is an objective one: whether a reasonable person in the suspect's position would consider himself deprived of his freedom of action in any significant way. See People v. Hamilton, 831 P.2d 1326, 1330 (Colo.1992); Julian Trujillo, 784 P.2d at 791. Here, the defendant was told that he was being...

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