People v. Tweedy

• Decision Date: 09 January 2006
• Docket Number: No. 04CA0037.,04CA0037.
• Citation: 126 P.3d 303
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles William TWEEDY, Defendant-Appellant.
• Court: Colorado Supreme Court

126 P.3d 303

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles William TWEEDY, Defendant-Appellant.

No. 04CA0037.

Colorado Court of Appeals, Div. II.

October 20, 2005.

Certiorari Denied January 9, 2006.

John W. Suthers, Attorney General, Matthew D. Grove, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Cynthia Sheehan, Denver, Colorado, for Defendant-Appellant.

DAILEY, J.

Defendant, Charles William Tweedy, appeals the judgments of conviction entered upon the jury verdicts finding him guilty of possession with intent to distribute a schedule II controlled substance, possession of drug paraphernalia, and special drug offender. We affirm.

Hotel staff contacted the police after observing individuals come and go from a particular room throughout the night. Upon responding to the scene at 5:10 a.m., the police contacted the occupants of the room, one of whom was defendant. After obtaining defendant's consent to search the room, the police recovered six bags of methamphetamine (3.23 grams), two digital scales, a small scoop, and a small burned pipe. They also found a martial arts throwing star on defendant and, in a locked safe next to the digital scales and two of the six bags of methamphetamine, two martial arts double-bladed knives.

I. Suppression of Evidence

Initially, defendant contends that the trial court erred in not suppressing, as the fruits of an illegal seizure, the drugs, drug paraphernalia, and knives. In this regard, he asserts that he had already been subjected to an illegal seizure when he gave his consent to search the room. We disagree.

The United States and Colorado Constitutions protect citizens from unreasonable searches and seizures. They do not, however, proscribe all contact between police and citizens. People v. Heilman, 52 P.3d 224, 227 (Colo.2002).

There are three categories of contacts between police and citizens: (1) arrests; (2) investigatory stops; and (3) consensual encounters. Arrests and investigatory stops are seizures implicating the constitutional protections of the Fourth Amendment and Colo. Const. art. II, § 7. People v. Morales, 935 P.2d 936, 939 (Colo.1997). In contrast, consensual encounters are not seizures, but are contacts in which the voluntary cooperation of citizens is elicited through noncoercive questioning. People v. Cervantes-Arredondo, 17 P.3d 141, 146 (Colo.2001). Consensual encounters do not, then, implicate constitutional protections against unreasonable seizures. See People v. Jackson, 39 P.3d 1174, 1180 (Colo.2002).

Whether a seizure occurred depends on whether a reasonable, innocent person in the defendant's position would have believed that he or she was free to leave or disregard the officer's requests. See People v. Jackson, supra, 39 P.3d at 1182, 1186; Outlaw v. People, 17 P.3d 150, 156 (Colo.2001).

"This test is objective in nature, based on the factual circumstances surrounding the encounter." Outlaw v. People, supra, 17 P.3d at 155; see also People v. Melton, 910 P.2d 672, 677 (Colo.1996)("[U]nless the police officer's subjective intent in approaching the individual is communicated to that individual, it is not relevant to the determination of whether the encounter is a [seizure] or a consensual encounter.").

In Outlaw v. People, supra, 17 P.3d at 156, the supreme court recognized the following examples of when a seizure occurs: (1) the threatening presence of several officers; (2) the display of a weapon by an officer; (3) some physical touching of the citizen's person; (4) the use of language or tone of voice indicating that compliance with an officer's request might be compelled; and (5) the officers' requiring that the citizen alter his or her direction of travel, walk back to the officers, or remain while police investigated him or her.

As the moving party, defendant had the burden of showing (1) that a "seizure" occurred and (2) that the seizure was unconstitutional. See Outlaw, supra, 17 P.3d at 155.

When reviewing a motion to suppress, we defer to the trial court's findings of fact if they are supported by competent evidence in the record. However, we review the trial court's legal conclusions de novo. The totality of the circumstances must be examined, including the behavior of the parties and the physical, temporal, and social context of the encounter. People v. Heilman, supra, 52 P.3d at 227-28.

Here, the trial court found, with record support, that (1) three uniformed police officers knocked on the door; (2) the lead officer heard voices from within the room and, while looking through the peephole, noticed movement and light within the room; (3) when defendant opened the door, the lead officer asked permission to come into the room; (4) the lead officer and defendant spoke to one another in a conversational tone of voice; (5) the lead officer advised defendant that the police were there because of a concern that illegal drugs might be in the room; (6) defendant gave permission for the officers to come into the room; (7) although the officers were armed, they did not draw their weapons; (8) the officers split up among the three occupants of the room; (9) the lead officer stood about three to four feet from defendant; (10) the lead officer asked defendant for his identification; (11) before or immediately after asking for the identification, the officer sought permission to search the room; and (12) defendant provided his identification to the officer and gave permission to search the room.

The trial court concluded, and we agree, that, until this point in time, the contact between the police and defendant was consensual in nature. Although the contact occurred early in the morning, the police had reason to believe that the occupants of the room had been awake throughout the night and were still awake. The officers' manner was not threatening, and they made no demands of the occupants. They did not display their weapons, touch the occupants, or use intimidating language or tone of voice. The record supports the trial court's conclusion that defendant voluntarily cooperated with the police, in both allowing them to enter his room and allowing them to search the room.

Any inherent social pressure defendant may have felt to cooperate with the police was not a sufficient basis for concluding that the encounter constituted a seizure. See People v. Johnson, 865 P.2d 836, 842 (Colo.1994). Nor did the encounter become a seizure simply because (1) it took place in a small hotel room, cf. People v. Coleman, 55 P.3d 817, 820 (Colo.App.2002)(encounter did not become a seizure simply because it occurred within cramped confines of a bus); (2) three officers were present, cf. United States v. Durades, 929 F.2d 1160, 1166-67 (7th Cir.1991) (presence of three officers, who acted professionally at all times, in one apartment with three occupants was not coercive); (3) the officer asked defendant for identification information, see People v. Jackson, supra, 39 P.3d at 1187; or (4) the officer failed to inform defendant that he need not comply with that or any other request, see People v. Jackson, supra.

Defendant nevertheless asserts that the encounter escalated into a seizure when the officer retained defendant's identification for purposes of running a warrant check. See People v. Jackson, supra, 39 P.3d at 1188-89. However, because the warrant check occurred after defendant gave his consent to search the room, his consent was not tainted by any prior illegality.

Consequently, we conclude that the trial court properly denied defendant's motion to suppress evidence.

II. Special Offender

Defendant contends that his adjudication as a special drug offender must be reversed. We are not persuaded.

A. Sufficiency of Evidence

Initially, we address defendant's assertion that there is insufficient evidence to support his adjudication as a special drug offender. He argues that there was no evidence that his collector's martial arts knives were deadly weapons. We are not persuaded.

When examining the sufficiency of the evidence, we determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the charge beyond a reasonable doubt. People v. Sherwood, 5 P.3d 956, 959 (Colo.App.2000).

In undertaking this analysis, we recognize that (1) if there is evidence from which one may reasonably infer an element of the charge, the evidence is sufficient to sustain that element, People v. Caldwell, 43 P.3d 663, 672 (Colo.App.2001); (2) the prosecution must be given the benefit of every reasonable inference which can be drawn from the evidence, People v. San Emerterio, 839 P.2d 1161, 1164 (Colo.1992); and (3) where reasonable minds could differ, the evidence is sufficient to sustain a conviction. See People v. Carlson, 72 P.3d 411, 416 (Colo.App.2003).

As pertinent here, a person is a special drug offender if he or she "used, displayed, possessed, or had available for use a deadly weapon as defined in section 18-1-901(3)(e)." Section 18-18-407(1)(f), C.R.S.2005.

In § 18-1-901(3)(e), C.R.S.2005, a deadly weapon is defined as:

any of the following which in the manner it is used or intended to be used is capable of producing death or serious bodily injury:

(I) A firearm, whether loaded or unloaded;

(II) A knife;

(III) A bludgeon; or

(IV) Any other weapon, device, instrument, material, or substance, whether animate or inanimate.

Under § 18-1-901(3)(e), "a knife is a per se deadly weapon when it is used or intended to be used during the commission of another crime." People in Interest of J.W.T., 93 P.3d 580, 582 (Colo.App.2004).

According to defendant, his knives could not have been deadly weapons because there was no evidence that they were used or intended to be used to cause serious bodily injury or death. He points out that they were found in a locked safe.

However, here a...