People v. Valencia

• Decision Date: 05 April 2007
• Docket Number: No. 05CA0572.,05CA0572.
• Citation: 169 P.3d 212
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sergio VALENCIA, a/k/a Cesar Holguin, Defendant-Appellant.
• Court: Colorado Court of Appeals

169 P.3d 212

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sergio VALENCIA, a/k/a Cesar Holguin, Defendant-Appellant.

No. 05CA0572.

Colorado Court of Appeals, Div. VI.

April 5, 2007.

Certiorari Denied October 1, 2007.

John W. Suthers, Attorney General, Susan E. Friedman, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Ned R. Jaeckle, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Sergio Valencia, also known as Cesar Holguin, appeals the judgments of conviction entered upon jury verdicts finding him guilty of possession of marihuana with intent to distribute and possession of eight ounces or more of marihuana. He also appeals his adjudication and sentencing as an habitual criminal. We affirm.

Defendant's convictions arose from a traffic stop in rural Colorado. A state trooper pulled over a car, in which defendant was a passenger, for failure to use headlights when visibility was less than 1000 feet. The driver told the trooper that the car belonged to defendant. The trooper verified this by examining the car's registration and defendant's driver's license, both of which bore the name "Cesar Holguin." While the trooper was verifying the registration and proof of insurance, another trooper arrived to provide assistance.

The first trooper informed the second that he suspected the driver was under the influence of an intoxicant. The two troopers then approached on opposite sides of defendant's car, one to talk with the driver, the other to talk with defendant.

The first trooper asked the driver to step out of the car and accompany him to its rear. After returning the registration and proof of insurance to the driver, the trooper questioned him about where he had come from, where he was headed, and whether the car contained any weapons, drugs, or large sums of money.

Meanwhile, the second trooper approached defendant and told him to "keep [his] hands on the lap or someplace on the dash so [the trooper could] see where they're at." The trooper then asked defendant where he and the driver had been and where they were going. After receiving defendant's answers, the trooper stood for a few minutes toward the front of the car, observing the other trooper and the driver.

The first trooper took the driver into custody and then met with the second trooper to compare defendant's statements with the driver's. When the answers were found to be inconsistent, the troopers re-approached defendant and asked him whether there were (1) any weapons or large amounts of cash in the vehicle, to which defendant replied "no"; (2) large amounts of marihuana in the car, to which defendant responded initially with a "yes," then immediately with a "no"; and (3) any drugs in the car, to which defendant answered, "no, no."

At this point, the first trooper asked, and was granted by defendant, permission to search the vehicle. Inside a metal compartment, located between the back seat and the trunk, the troopers found fifty pounds of marihuana. In a separate bag, located in the trunk, they found a pound of marihuana along with clothing that would fit a smaller man like defendant.

Prior to trial, defendant unsuccessfully moved to suppress the marihuana, asserting that he had been illegally detained before he consented to a search of the car. At trial, the defense argued that the drugs in the car belonged to the driver, not to defendant.

The jury convicted defendant. Subsequently, the trial court adjudicated him an habitual criminal based on evidence that he had three prior felony convictions. The court sentenced him to concurrent prison terms of twenty-four years for possession of marihuana with intent to distribute and twelve years for possession of eight or more ounces of marihuana.

I. Suppression of Evidence

Defendant contends that the trial court erred in not suppressing the marihuana found in the car. We disagree.

The trial court ruled that the marihuana had properly been seized following defendant's voluntary consent to search the car. The court rejected defendant's argument that his consent to search was the product of an unreasonable seizure. The court found that reasonable suspicion existed to support a seizure when defendant equivocally answered the trooper's question about the presence of marihuana. The trial court found that defendant earlier had not been seized but rather had engaged in a consensual encounter with the police.

On appeal, defendant contends that he was illegally subjected to an investigatory detention when (1) he was told by the second trooper to "keep [his] hands on the lap or someplace on the dash so [the trooper could] see where they're at"; or (2) he was questioned, first, about his and the driver's travels, and then, about the presence of marihuana in the car. We are not persuaded.

With regard to the first contention, we note that, in the trial court, defendant did not even mention the trooper's instruction, much less present any argument that it constituted a seizure or in any other way affected the determination of whether he had been seized. Consequently, we decline to address it on appeal. See People v. Huynh, 98 P.3d 907, 913 (Colo.App.2004) (declining to address issue not raised in suppression hearing); People v. Rogers, 68 P.3d 486, 490 (Colo.App. 2002)(same).

With respect to defendant's second contention, the United States and Colorado constitutional protections against unreasonable searches and seizures do not proscribe all contact between police and citizens. People v. Heilman, 52 P.3d 224, 227 (Colo.2002).

In Colorado, we recognize three categories of encounters between police and citizens: (1) arrests; (2) investigatory stops; and (3) consensual encounters. Because arrests and investigatory stops are seizures, they implicate the search and seizure protections of the Fourth Amendment of the United States Constitution and article II, § 7 of the Colorado Constitution. People v. Morales, 935 P.2d 936, 939 (Colo.1997). In contrast, a consensual encounter — a contact in which the voluntary cooperation of a citizen is elicited by police through noncoercive questioning — is not a seizure, and thus, does not implicate constitutional search and seizure protections. See People v. Jackson, 39 P.3d 1174, 1179 (Colo.2002); People v. Cervantes-Arredondo, 17 P.3d 141, 146 (Colo. 2001).

As the moving party, defendant had the burden of showing (1) the point at which he was "seized" and (2) that the seizure was unconstitutional. Outlaw v. People, 17 P.3d 150, 155 (Colo.2001).

"[A] passenger is not seized within the meaning of the Fourth Amendment merely because the vehicle in which [he or] she is riding is subjected to a traffic stop. . . ." People v. Fines, 127 P.3d 79, 81 (Colo.2006); see People v. Jackson, supra, 39 P.3d at 1185 ("The stop of the passenger is merely an unavoidable result of the driver's acquiescence in the police officer's command."). Thus, an investigatory stop of the driver does not preclude police from subsequently engaging in a consensual interview with the passenger. People v. Jackson, supra, 39 P.3d at 1187.

Inherent social pressure to cooperate with police is not in itself a sufficient basis for concluding that a police-citizen encounter constituted a seizure. See People v. Johnson, 865 P.2d 836, 842 (Colo.1994). However, a consensual interview can escalate into an investigatory stop if, upon consideration of the totality of the circumstances, a reasonable person, innocent of any crime, would feel that he or she was not free to leave the officer's presence or disregard the officer's request for information. See People v. Jackson, supra, 39 P.3d at 1188; see also People v. Heilman, supra, 52 P.3d at 228; People v. Paynter, 955 P.2d 68, 72-73 (Colo. 1998).

In Jackson, the supreme court identified the following as factors to consider in determining whether a seizure has occurred between a police officer and an occupant of a vehicle:

(1) whether there is a display of authority or control over the defendant by activating the siren or any patrol car overhead lights; (2) the number of officers present; (3) whether the officer approaches in a non-threatening manner; (4) whether the officer displays a weapon; (5) whether the officer requests or demands information; (6) whether the officer's tone of voice is conversational or whether it indicates that compliance with the request for information might be compelled; (7) whether the officer physically touches the person of the citizen; (8) whether an officer's show of authority or exercise of control over an individual impedes that individual's ability to terminate the encounter; (9) the duration of the encounter; and (10) whether the officer retains the citizen's identification or travel documents.

People v. Jackson, supra, 39 P.3d at 1184.

When reviewing a motion to suppress, we defer to the trial court's findings of fact if those findings are supported by competent evidence in the record. However, we review the trial court's legal conclusions de novo. People v. Heilman, supra, 52 P.3d at 227.

Here, the trial court found that, at least until the troopers obtained reasonable suspicion, they and defendant were engaged in a consensual encounter. The court also found that, at most, only fifteen minutes had elapsed between the stop and defendant's giving the consent to search the car. In addition, the suppression hearing evidence does not suggest that the troopers demanded, as opposed to merely requested, information from defendant or that they touched him.

Further, the trial court noted that, although defendant had not been informed by the troopers that he could go, he also had not been told by them to stay. The court found:

There's no coercive conduct involved at that stage. There's no withholding of information. There's no display of weapons or authority. There's no...