People v. Weston

• Decision Date: 14 March 1994
• Docket Number: No. 93SA215,93SA215
• Citation: 869 P.2d 1293
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Darin WESTON, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1293

869 P.2d 1293

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Darin WESTON, Defendant-Appellee.

No. 93SA215.

Supreme Court of Colorado En Banc.

March 14, 1994.

Robert S. Grant, Dist. Atty., Seventeenth Judicial Dist., Michael J. Milne, Sr. Deputy Dist. Atty., Victoria A. Tucker, Intern Deputy Dist. Atty., Brighton, for plaintiff-appellant.

David F. Vela, State Public Defender, Peter W. Sadick, Deputy State Public Defender, Brighton, for defendant-appellee.

Justice MULLARKEY delivered the Opinion of the Court.

In this interlocutory appeal, taken pursuant to C.A.R. 4.1 and section 16-12-102(2), 8A C.R.S. (1986 & 1993 Supp.), the People seek reversal of an order of the Adams County District Court suppressing evidence seized from the passenger compartment of an automobile during an investigatory stop and detention of the occupants of the vehicle. We conclude that, under the specific circumstances of this case, the police officer had a reasonable basis for conducting a protective search of the passenger compartment of the vehicle in the interest of her own safety. Accordingly, we reverse the order of suppression and remand the case to the district court for further proceedings.

I

At approximately 10:45 p.m. on September 18, 1992, two officers of the Aurora Police Department advised on-duty patrol officers to be alert for a dark-colored (possibly brown), older-model Datsun. The vehicle's occupants, described as three black males, were suspected of being involved in a stabbing that had just occurred in the 1600 block of Beeler Street.

One hour and fifteen minutes later, at approximately 12:01 a.m. on September 19, 1992, Officer Shannon Lucy of the Aurora Police Department was on routine patrol in the 1600 block of Florence Street when she observed a brown vehicle which looked like a Datsun. The vehicle, owned and driven by the defendant, Darin Weston, was occupied by three black males travelling westbound on East 16th Avenue. This area is approximately six to eight blocks from where the stabbing had occurred.

Based on the information previously aired by the officers who were at the scene of the stabbing, Lucy decided to stop the vehicle. Before stopping the vehicle, however, she requested backup officers for reasons of personal safety. After two officers arrived to cover Lucy, she stopped the vehicle and asked for identification from Weston and the two passengers. She then asked each person to exit the vehicle one at a time and conducted a pat-down search for weapons.

While the occupants were being observed by the backup officers, Lucy searched the vehicle for weapons. At the suppression hearing, Lucy testified that it was general procedure to search a car for weapons "if I have reason to be concerned that there are weapons in the car." According to Lucy, "because of the length of time that it takes to get clearances and IDs on people, ... I'll search the vehicle for weapons and for my own safety in those circumstances; and then they are allowed to be seated back in the car if everything's okay." Lucy further explained that she would search a vehicle for weapons as a "courtesy" to the vehicle's occupants prior to contacting the police dispatcher for clearances. "[I]t keeps them from having to stand out on the sidewalk for however long this thing takes to get through."

While inspecting the passenger compartment of Weston's car, Lucy searched a plastic map pocket approximately three inches wide and six to eight inches deep on the driver's side door. Lucy described the map pocket as big enough to "get your hand all the way in" and big enough to hold a gun. Lucy found two baggies towards the bottom of the map pocket, one of which contained crack cocaine and the other marihuana. Weston was charged with the unlawful possession of a schedule II controlled substance (cocaine) ¹ and with the unlawful possession of less than one ounce of marihuana. ²

On June 3, 1993, Weston filed a motion to suppress evidence and statements which the officers had obtained at the time of his arrest. In his motion, Weston alleged that the evidence seized was the product of an unconstitutional stop and an unconstitutional search and seizure under the Fourth Amendment of the United States Constitution and Article II, Section 7 of the Colorado Constitution. At the hearing on Weston's motion, the district court ruled that Lucy had a reasonable and articulable suspicion which justified the investigatory stop of Weston's car. However, the district court concluded that Lucy exceeded the permissible scope of the stop when she searched the car because the search was "based upon a convenience of the [vehicle's occupants] ... so that they would not have to remain out in the cold." The district court then suppressed the evidence of the crack cocaine and the marihuana from use at trial.

II

A police officer having less than probable cause for arrest may conduct an investigatory stop and a limited search of the person for weapons provided that the following requirements are met: (1) there must be an articulable and specific basis in fact for suspecting that criminal activity has occurred, is taking place, or is about to take place; (2) the purpose of the intrusion must be reasonable; and (3) the scope and character of the intrusion must be reasonably related to its purpose. People v. Martinez, 801 P.2d 542, 544 (Colo.1990); People v. Ratcliff, 778 P.2d 1371, 1376 (Colo.1989); People v. Cagle, 688 P.2d 718, 721 (Colo.1984) (Cagle I ); People v. Lewis, 659 P.2d 676, 681 (Colo.1983); People v. Tate, 657 P.2d 955, 958 (Colo.1983).

During the course of an investigatory stop, a police officer also may search those areas of the passenger compartment in which a weapon may be placed or hidden. Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 3480-81, 77 L.Ed.2d 1201 (1983); People v. Melgosa, 753 P.2d 221, 225 (Colo.1988). Such a limited intrusion is justified by the particular hazards confronting a police officer in roadside encounters with drivers and passengers of automobiles. Even though the officer may have physical control of the suspect, the suspect still can break away from police control and retrieve the weapon from his automobile, or may have access to weapons if permitted to return to his car before the investigatory stop is over. Long, 463 U.S. at 1051-52, 103 S.Ct. at 3481-82; Melgosa, 753 P.2d at 226.

However, a valid stop of a vehicle based on reasonable suspicion does not mean that the police automatically may search the passenger compartment for weapons. Long, 463 U.S. at 1049 n. 14, 103 S.Ct. at 3481 n. 14; Martinez, 801 P.2d at 544; Ratcliff, 778 P.2d at 1376. Instead, a police officer may conduct a search of the passenger compartment only if he or she possesses a reasonable belief based on specific and articulable facts that the suspect is dangerous and may gain immediate control of weapons. Long, 463 U.S. at 1049, 103 S.Ct. at 3480-81; People v. Corpany, 859 P.2d 865, 869 (Colo.1993); People v. Cagle, 751 P.2d 614, 617 (Colo.), appeal dismissed sub nom. Cagle v. Colorado, 486 U.S. 1028, 108 S.Ct. 2009, 100 L.Ed.2d 597 (1988) (Cagle II ). See also § 16-3-103(2), 8A C.R.S. (1986) (providing that officers may conduct a pat-down search if they reasonably suspect that their personal safety requires it).

If there is a reasonable basis to suspect that the person might be armed and dangerous, the search still must be limited in scope and confined to areas in which a weapon might be placed or hidden. Corpany, 859 P.2d at 869; Martinez, 801 P.2d at 544; Ratcliff, 778 P.2d at 1377. However, the officer conducting the search is permitted to make a cursory examination of any object discovered during the search for the purpose of determining whether the object is a weapon. Martinez, 801 P.2d at 544; Ratcliff, 778 P.2d at 1377; Melgosa, 753 P.2d at 228. If the officer has probable cause to believe that the object is incriminating, he or she then may lawfully seize the object without a search warrant under the "plain view" doctrine. Melgosa, 753 P.2d at 226. See also Long, 463 U.S. at 1050, 103 S.Ct. at 3481 (stating if an officer discovers contraband other than weapons during a legitimate protective search, "he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances"); Texas v. Brown, 460 U.S. 730, 739, 103 S.Ct. 1535, 1541-42, 75 L.Ed.2d 502 (1983) (plurality opinion).

III

With these principles in mind, we consider whether the conditions required for a protective search of the passenger compartment of an automobile were satisfied in this case.

A

The first condition for a valid investigatory stop and a protective search for weapons is the existence of a specific and articulable basis in fact for suspecting that the person subjected to the stop has engaged in, is presently engaging in, or is about to commit a criminal act. E.g., Ratcliff, 778 P.2d at 1378; People v. Hughes, 767 P.2d 1201, 1203 (Colo.1989). Weston argues that the suppression order should be affirmed since the police did not have a reasonable and articulable suspicion that he may have been involved in criminal activity when they stopped his car. We decline to address this question in an interlocutory appeal under C.A.R. 4.1.

We have often stated that C.A.R. 4.1 limits the types of rulings from which interlocutory appeals can be taken and cannot be employed to obtain pre-trial review of issues not covered by the rule. See, e.g., People v. Dailey, 639 P.2d 1068, 1076 n. 8 (Colo.1982). For our purposes, this means that a ruling granting a defendant's pre-trial motion to suppress evidence is subject to interlocutory appeal by the state. C.A.R. 4.1 (stating that "[t]he state may file an interlocutory appeal in the supreme court from a ruling of the district court granting a motion ... made in advance of trial by the defendant for return of property and to suppress...