People v. Thomas, 82SA401

• Decision Date: 28 March 1983
• Docket Number: No. 82SA401,82SA401
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Joseph "Cherokee" THOMAS, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1272

660 P.2d 1272

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Joseph "Cherokee" THOMAS, Defendant-Appellee.

No. 82SA401.

Supreme Court of Colorado,

En Banc.

March 28, 1983.

Dale Tooley, Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellant.

Lozow & Lozow, Gary Lozow, Denver, for defendant-appellee.

QUINN, Justice.

The People in this interlocutory appeal challenge the ruling of the district court suppressing six colored balloons containing cocaine seized during a police chase of the defendant. The district court concluded that the officers' chase of the defendant was not supported by either probable cause or reasonable suspicion and, therefore, the seizure was constitutionally infirm. See U.S. Const. Amends. IV and XIV; Colo. Const. Art. II, Sec. 7. We affirm the suppression ruling.

I.

The defendant is charged in the Denver District Court with unlawful possession of a schedule II controlled substance, cocaine, on September 16, 1981. Section 18-18-105, C.R.S.1973 (1982 Supp.). The defendant filed a motion to suppress the cocaine on the ground that it was seized during an unlawful arrest or seizure of the defendant's person. A hearing was held on the motion immediately prior to the commencement of trial on August 25, 1982. Upon granting the motion the court continued the trial in order to allow the People to pursue this interlocutory appeal.

The evidence at the suppression hearing established the following events. At approximately 11:00 a.m. on September 16, 1981, Denver narcotics Detectives Schuelke and Chavez, along with two other officers, were on routine patrol in an unmarked police vehicle in the vicinity of Washington and Welton Streets, commonly known as Five Points, in Denver, Colorado. Detective Schuelke was driving the vehicle in an easterly direction on Welton Street and stopped for a red light at the intersection of Welton, Washington and 26th Streets. Schuelke looked across the street and observed the defendant, whom he recognized, standing in the parking lot of Church's Fried Chicken store. None of the officers had prior information indicating that the defendant might be engaged in any illegal activity. Schuelke said to the other officers "there's Cherokee." The defendant looked in the direction of the officers and appeared to make eye contact with them. The defendant, according to Schuelke, was "more or less just standing in the lot" at this moment and "wasn't walking toward anything."

The exact sequence of events following the officers' initial eye contact with the defendant is somewhat unclear. According to Detective Chavez, as soon as eye contact was made the defendant started to run toward an adjoining building known as the "shack," which occasionally was used as a gambling establishment. Detective Schuelke also, at one point, testified that the defendant saw the officers and immediately started running toward the "shack." At another point in his testimony Schuelke stated that as he turned the corner in the unmarked police vehicle the defendant walked toward the "shack," put his hand in his pocket, and then at about the same time that Schuelke drove the police vehicle around the corner, the defendant started to run. In any event Schuelke drove his vehicle on the wrong side of Washington Street and headed toward the defendant because he "assumed at that time [the defendant] was either trying to hide something [or] had something on him." Schuelke stopped the vehicle, and he and the other officers chased the defendant on foot inside the "shack." As they followed him inside, Schuelke saw the defendant throw something into a water pitcher on top of a candy machine in the front room of the building. He ordered the defendant to stop and drew his gun. While Schuelke went to the water pitcher and retrieved the items, which turned out to be six balloons containing cocaine, Detective Chavez took the defendant into custody.

In granting the defendant's motion to suppress the district court found that when the officers observed the defendant in the parking lot "he was reaching for his pocket;" and "then, after reaching in his pocket, [the defendant] observed the police officers and commenced running." The court concluded that the officers' chase of the defendant was based upon bare suspicion only. In addressing the issue of abandonment, which had been raised by the People, the court ruled that the defendant's act of discarding the balloons was the product of an illegal chase. The People on this appeal urge that the police chase of the defendant was based upon a reasonable suspicion which justified a temporary stop for investigation of illegal activity. ¹ From this basic proposition the People then argue that the seizure of the balloons was not the product of any illegal police conduct and, therefore, the arrest of the defendant was predicated upon probable cause. The People's argument, in our view, is based upon a faulty assumption, namely, that the officers had reasonable suspicion in the first instance to engage in a chase of the defendant.

II.

If the officers were justified in chasing the defendant in order to make an investigatory stop, then the defendant's act in discarding the balloons was not the product of an unlawful police intrusion, and the court should not have suppressed the evidence. See, e.g., People v. Ortega, 175 Colo. 136, 485 P.2d 894 (1971); Johnson v. People, 171 Colo. 150, 465 P.2d 128 (1970). On the other hand, if the officers were not justified in chasing the defendant at the outset, then the defendant's act of discarding the balloons was the product of unlawful police activity, and the court's suppression order should be upheld. See, e.g., Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960); United States v. Newman, 490 F.2d 993 (10th Cir.1974); People v. Severson, 39 Colo.App. 95, 561 P.2d 373 (1977); Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973). The determinative issue in this case, therefore, is whether the officers' pursuit of the defendant was justified at its inception.

Three conditions must exist before a person may be subjected to an investigative stop: (1) there must be a specific and articulable basis in fact for suspecting that criminal activity has occurred, is taking place, or is about to take place; (2) the purpose of the stop must be reasonable; and (3) the scope and character of the stop must be reasonably related to its purpose. See, e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); People v. Tate, 657 P.2d 955 (Colo.1983); Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971). The reasonable suspicion necessary for an investigative stop must be judged against an objective standard--that is, whether there were specific and articulable facts known to the officer, which taken together with rational inferences from these facts, created a reasonable suspicion of criminal activity to justify the intrusion into the defendant's personal security. E.g., Michigan v. Summers 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981); 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); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Terry v. Ohio, supra. In determining whether this objective standard has been met the critical focus necessarily centers upon the facts known to the officers immediately prior to the intrusion. Facts uncovered after a chase begins do not enter into the constitutional equation for reasonable suspicion:

"Stops provoke constitutional scrutiny because they encumber one's freedom of movement. Pursuit that appears designed to effect a stop is no less intrusive than a stop itself. In other words, the officer's right to pursue when a stop appears imminent can be no broader than his right to stop. Thus, the suspicion must be reasonable before the pursuit begins. Were the rule otherwise, the police could turn a hunch into a reasonable suspicion by inducing the conduct justifying the suspicion. For present purposes, a stop starts when pursuit begins." Commonwealth v. Thibeau, 384 Mass. 762, ---, 429 N.E.2d 1009, 1010 (1981).

A review of the evidence in this case clearly establishes that the officers did not have a reasonable suspicion of criminal activity when they took up their pursuit of the defendant. The only articulable and specific facts known to the officers when they began their chase were the following: the defendant appeared to see the officers and then ran to a nearby building with his hand in his pocket. Having no information indicating the defendant might be engaged in illegal activities, the officers made the decision to chase the defendant on the basis of what they perceived to be a furtive gesture, namely, the defendant's putting his hand in his pocket and then starting to run.

The problem with the so-called "furtive gesture" as the basis for a stop is its inherent ambiguity. From the viewpoint of the observing police officer, an innocent move may often be mistaken for a guilty reaction. From the perspective of the person observed, the "furtive gesture" might be impelled by a variety of motives, from an unsettling feeling of being watched to an avoidance of what might be perceived as a form of harassment. See People v. Superior Court of Yolo County, 3 Cal.3d 807, 478 P.2d 449, 91 Cal.Rptr. 729 (1970). Then again, a person's movement may not be a reaction to the police at all.

Viewed from a purely objective level of observation, the act of running a short distance to a nearby building, with or without one's hand in the pocket, is an action so universal in character that one can only speculate as to its motivating source. Even when the act of running is motivated by an effort to avoid contact with the police, it still does not constitute the type of specific and...