People v. Trujillo

Decision Date30 May 1989
Docket NumberNo. 88SA147,88SA147
Citation773 P.2d 1086
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Anthony Ivan TRUJILLO, Defendant-Appellee.
CourtColorado Supreme Court

Douglass F. Primavera, Dist. Atty., Amanda Pearson, Deputy Dist. Atty., Alamosa, for plaintiff-appellant.

David F. Vela, State Public Defender, Ruth M. Acheson, Deputy State Public Defender, Alamosa, for defendant-appellee.

MULLARKEY, Justice.

The district attorney brings this interlocutory appeal pursuant to C.A.R. 4.1 to challenge an order of the Alamosa County District Court which suppressed certain evidence including a microwave oven, the defendant's boots, and the defendant's statements. 1 We affirm in part the district court's suppression order and reverse in part and remand for further proceedings consistent with this opinion.

I.

The defendant, Anthony Trujillo, was charged with second degree burglary, first degree arson, and theft by receiving. After entering a plea of not guilty, Trujillo filed a motion to suppress all statements allegedly made by him during his detention and all evidence collected from him as fruits of his detention. At the suppression hearing, the trial court heard testimony from three police officers and Trujillo, and made extensive findings of fact which we summarize as follows.

In the late afternoon of November 25, 1987, Alamosa police officer Leroy Chacon was on patrol in a marked police car when he observed two men walking on the sidewalk toward his car. One of the men, later identified as the defendant, Anthony Trujillo, was carrying what the officer thought was a large box. As the officer drove past the two men, the man carrying the box noticed the police car and handed the box to his companion. Both men continued walking without changing their pace. Because Officer Chacon thought this conduct was suspicious, he decided to contact the two men. The officer testified that the area was a high crime area, but he acknowledged that there were apartments in the immediate vicinity and that it was not unusual to see residents carrying personal belongings in the area.

For his own safety, Officer Chacon called for police backup, which arrived a few minutes later. Officer Chacon and two other police vehicles stopped directly in the path of the two men carrying the box as the men crossed a vacant lot. When the police approached the two men, they realized that the box was actually a microwave oven. The police stopped the two men for questioning, examined the microwave, and processed the serial number of the microwave through the police computer to determine if it was stolen. The computer check did not show the microwave as stolen, but Officer Chacon remained suspicious. The officer asked Trujillo to explain what he was doing with the oven. Trujillo replied that he had purchased the oven for his mother's birthday but that he was trying to sell it in order to buy a bus ticket to Denver. He offered to sell it to the officers for $20.

To verify Trujillo's story, partly because he was thinking of buying the microwave for himself, Officer Chacon used his car radio to have the police dispatcher contact Trujillo's mother. She said that she had a microwave but it was not clear whether the one which Trujillo was carrying was hers. According to the officer, Trujillo's mother then said that she would like to speak with her son, but the officer would not allow him to speak over the radio. Instead the officer said he would give Trujillo a ride to a telephone where he could talk to his mother. The officer then took Trujillo to the squad room at the police station where the officer telephoned Trujillo's mother and discussed the oven again with her before he let Trujillo talk with her. As Trujillo spoke with his mother, Officer Chacon overheard him conversing about turkeys, microwaves and Thanksgiving. Unable to uncover any evidence of wrongdoing, the officer finally told Trujillo that he was "free to go" and offered to drive him back to the spot where the police had originally found him. Trujillo accepted his offer.

As Officer Chacon started to put the microwave back into the patrol car, he noticed an Alamosa County identification label on the bottom corner of the microwave. He telephoned Investigator Lopez who confirmed that a burglary and arson had occurred early that morning at the County Department of Social Services building in Alamosa. Trujillo was taken into custody and, although he was not free to leave, he was not formally arrested.

Shortly thereafter, Investigator Lopez arrived at the station. Trujillo was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but he refused to sign a written waiver. Trujillo complied with the investigator's request to remove his boots, and he gave them to the police as part of their investigation. The investigator then questioned Trujillo for over an hour about the events of the night before. The investigator testified that Trujillo claimed that he bought the microwave from "a wetback" at a bar early that morning. Trujillo testified that when the investigator accused him of the arson, he responded by requesting an attorney. It is undisputed that after Trujillo asked for an attorney the police officers ceased their questioning. An hour or so later, the police released Trujillo and, because he did not have his boots, Officer Chacon gave him a ride to a friend's house.

Seven weeks later, on January 14, 1988, Trujillo returned to the Alamosa County Jail after being apprehended in Arizona on an arrest warrant issued in this case. The next day, Investigator Lopez again advised Trujillo of his Miranda rights, and this time, Trujillo signed a written waiver of his rights. Trujillo testified that he did not ask for an attorney at this time because the investigator informed him that counsel would be provided when he went to court later that day. The investigator questioned Trujillo in his cell for over 30 minutes regarding the microwave and the arson. According to the investigator, Trujillo recounted a story similar to the one he had given during the previous interrogation. He denied his involvement in the arson, but admitted that he may have received stolen property or committed burglary.

The trial court found that the police officers' initial contact with Trujillo while he was walking down the street with the microwave was not premised on "an articulable and specific basis in fact for suspecting that criminal activity has occurred or is about to occur." Accordingly, the court suppressed the microwave, the boots, and the first set of statements which Trujillo gave at the police station on November 25, 1987. The court also held that the second interrogation of Trujillo on January 15, 1988, was derivative of the first interrogation and was inadmissible as the fruit of the poisonous tree.

II.

The district attorney contends that the police officers' initial contact with Trujillo on the street on November 25, 1987, was a constitutionally valid consensual interview. Trujillo claims that the police officers' conduct in surrounding him, questioning him, and transporting him to the police station for further questioning constituted a seizure which occurred in the absence of probable cause or an articulable suspicion of criminal activity and, thus, violated the Fourth Amendment safeguard against unreasonable search and seizure.

Case law has delineated three general categories of police-citizen encounters: 1) arrest, 2) investigatory stop, and 3) consensual interview. See United States v. Black, 675 F.2d 129, 133 (7th Cir.1982), cert. denied, 460 U.S. 1068, 103 S.Ct. 1520, 75 L.Ed.2d 945 (1983). The first, an arrest, is characterized by highly intrusive search or detention and must be justified by probable cause. See, e.g., People v. Tufts, 717 P.2d 485 (Colo.1986). See generally 1 W. LaFave & J. Israel, Criminal Procedure § 3.3 (1984).

The second, an investigatory stop, "is limited to brief, non-intrusive detention during a frisk for weapons or preliminary questioning" and must be justified by a reasonable, articulable suspicion that the person stopped is involved in criminal activity. United States v. Black, 675 F.2d at 133; see also Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); People v. Hughes, 767 P.2d 1201, 1203-04 (Colo.1989). An investigatory stop must be justified by some objective manifestation, under the totality of the circumstances, that the person stopped was, is, or is about to be, engaged in criminal activity. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981). Under the three part test for a constitutionally permissible investigatory stop, the prosecution must establish that:

(1) there is an articulable and specific basis in fact for suspecting that criminal activity has occurred, is taking place, or is about to occur; (2) the purpose of the intrusion is reasonable; and (3) the scope and character of the intrusion is reasonably related to its purpose.

People v. Melgosa, 753 P.2d 221, 225 (Colo.1988).

The third type of police-citizen encounters, the consensual interview, "is that in which no restraint of the liberty of the citizen is implicated, but the voluntary cooperation of the citizen is elicited through non-coercive questioning." United States v. Black, 675 F.2d at 133; see Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983) (police "do not violate the Fourth Amendment by merely approaching an individual on the street ... by asking him if he is willing to answer some questions...."); Terry v. Ohio, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16.

In this case, the district attorney contends that the police did not need to have probable cause or a reasonable suspicion to stop Trujillo because the initial police contact with Trujillo was merely...

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