People v. Whitaker, 98CA2273.

• Decision Date: 14 September 2000
• Docket Number: No. 98CA2273.,98CA2273.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David L. WHITAKER, Defendant-Appellant.
• Court: Colorado Court of Appeals

32 P.3d 511

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David L. WHITAKER, Defendant-Appellant.

No. 98CA2273.

Colorado Court of Appeals, Div. II.

September 14, 2000.

Certiorari Granted October 1, 2001.

Ken Salazar, Attorney General, Kim L. Montagriff, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Dana Nichols, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge PLANK.

Defendant, David Whitaker, appeals the judgment of conviction entered upon a jury verdict finding him guilty of possession with intent to distribute more than one kilogram of a controlled substance (methamphetamine). We affirm.

Defendant was a passenger on a bus traveling from Los Angeles to Denver that stopped in Grand Junction, Colorado, for service and to change drivers. The passengers were required to leave the bus during the stop.

Subsequently, after the passengers had boarded the bus for departure from Grand Junction, three police officers entered the bus and spoke with them. Defendant's conduct aroused their suspicions, and, upon obtaining defendant's consent, they searched a travel bag and discovered almost four kilograms of methamphetamine. The conviction here at issue followed.

I.

Defendant contends that the trial court erred when it denied his motion to suppress certain evidence as the fruits of an unconstitutional search. We disagree.

A.

Defendant first contends that his initial encounter with the police officers was an investigatory stop unsupported by a reasonably articulable suspicion that a crime was being committed. We are not persuaded.

Police interactions with the public fall into three categories for search and seizure analysis: consensual interviews, investigatory stops, and arrests. During a consensual interview, no seizure occurs because the police seek voluntary cooperation. A consensual interview can escalate into an investigatory stop, and thus implicate the protections of the Fourth Amendment, if, upon objective review of the totality of the circumstances, a reasonable person would not feel that he or she was free to leave or to disregard the officer's request for information. People v. Paynter, 955 P.2d 68 (Colo.1998).

Citing People v. Sporleder, 666 P.2d 135 (Colo.1983), defendant argues that Colo. Const. art. II, § 7, provides more protection against the type of seizure at issue here than does the Fourth Amendment, and that such provision would here support his motion to suppress. We are not persuaded.

We agree that the reach of our constitution has occasionally been held to be broader than its federal counterpart. See People v. Oates, 698 P.2d 811 (Colo.1985)

(holding the warrantless placement of a tracing device in a drum of chemicals to be illegal search); People v. Sporleder, supra (recognizing an objectively reasonable expectation of privacy in telephone numbers dialed that is not recognized by U.S. Supreme Court); Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980) (recognizing an objectively reasonable expectation of privacy in banking records); see also People v. Hillman, 834 P.2d 1271 (Colo.1992) (discussing issue of an objectively reasonable expectation of privacy in trash left in the street for collection).

However, our supreme court has relied on federal Fourth Amendment jurisprudence to resolve the type of seizure issues raised here by defendant, and has done so without construing Colo. Const. art. II, § 7, more broadly than the Fourth Amendment. Furthermore, defendant makes no specific argument to justify a deviation from such precedent of our supreme court. Consequently, we decline to expand upon the protections provided by the Fourth Amendment. See People v. Grazier, 992 P.2d 1149 (Colo.2000)

(applying Fourth Amendment jurisprudence to conclude that search was not supported by probable cause); People v. Paynter, supra (analyzing and defining the hierarchy of consensual encounters, investigatory stops, and arrests).

The determination of whether a consensual interview has escalated into an investigatory stop is a mixed question of law and fact. Upon review, we are bound by the trial court's findings if they are supported by evidence in the record, but we review its ultimate legal conclusion de novo. See People v. Romero, 953 P.2d 550 (Colo.1998)

.

Here, on supporting evidence, the trial court found, inter alia, that defendant was questioned by two different police officers for a total of approximately three minutes before he consented to the search of the travel bag. Defendant conceded certain items in the bag were his, but he denied owning the bag or the remainder of its contents.

The court also found that the officers did not display any weapons, were in plain clothes, did not obstruct the exit door of the bus, and announced that they wanted to talk to every passenger "if that was okay with them" and that the passengers were "free to go about their business" as the officers did so.

From these findings the court held that "a reasonable person" would have concluded that he "did not have to comply" with the officer's request for information.

In challenging the court's conclusion, defendant argues that it failed to take into account the physical proximity and placement of the officers during the questioning that occurred, noting that one stood "directly behind" him and the other "directly in front," while a third officer was "stationed by the door." However, the trial court specifically described the placement and movement of the officers in its findings in terms that suggest neither intimidation nor detention of defendant, and we are not persuaded that the trial court failed to take such matters into consideration.

Accordingly, reviewing the circumstances de novo in light of the trial court's findings, we agree with the trial court that defendant was not detained until after the suspicious packages were found.

B.

Defendant next contends that the allegedly prolonged police questioning, and the officers' repeated questions about defendant's stated lack of luggage, unconstitutionally escalated the encounter on the bus to an investigatory stop significantly before the discovery of the suspicious packages in the travel bag. Again, we are not persuaded.

Where police questioning is prolonged after a defendant has provided identification and answered questions in a manner that does not give rise to additional suspicions, a seizure may have occurred, and a previously consensual encounter may have escalated into an investigatory stop or an arrest. People v. Johnson, 865 P.2d 836 (Colo.1994).

Here, however, not only did the questioning of defendant last only three minutes before the discovery of the suspicious packages, approximately the same amount of time regarded as acceptable by the supreme court in Johnson, but, more importantly, the suspicions of the police officers were aroused by defendant's answers to their questions. Such suspicious answers included especially his statement that he had no luggage despite having been away from home for several days and spending several additional days on buses traveling to and from his destination. And, while defendant may have attempted to obscure the travel bag from the view of the police, it was nevertheless in plain view on a public conveyance, and its presence appeared to contradict his statement that he had no luggage on the bus. Such actions by the police therefore constitute neither prolonged nor unreasonable questioning, and we conclude that the encounter did not thereby escalate into an investigatory stop.

C.

Defendant maintains that the trial court failed to rule on whether he consented to leave the bus with the police officers after the search of the travel bag revealed the suspicious packages and that at least a remand is required to resolve the point. We disagree.

The trial court ruled, and we have affirmed, that no seizure occurred until the consent search of the travel bag on the bus turned up packages consistent with the illegal transportation of a controlled substance. Once the police officers had found the suspicious packages, they had a reasonably articulable suspicion to support a detention of defendant for further inquiry.

Defendant concedes that such an investigatory stop was proper at that point, but he argues that requiring him to disembark from the bus escalated the stop into a warrantless arrest without probable cause. We are not persuaded.

When an investigatory stop involves more than a brief detention and questioning, it escalates into an arrest, which must be supported by probable cause. To determine whether an investigatory stop has escalated into an arrest, the trial court must consider the totality of the circumstances, including at least the following four factors: (1) the length of the detention; (2) whether the investigation was diligently pursued; (3) whether the suspect was required to move from one place to another; and (4) whether there were alternative and less intrusive methods available which the police unreasonably failed to pursue. People v. Rodriguez, 945 P.2d 1351 (Colo.1997) (investigatory stop escalated into illegal arrest where driver was detained for 90 minutes and required to travel 10 miles in a direction away from his stated destination).

Defendant here focuses on the third consideration and argues that he was unreasonably and unnecessarily required to move from inside the bus to a location outside the bus, where one of the suspicious packages was opened, revealing the methamphetamine. The trial court found, with support in the record, that only a short time had passed from the request to leave the bus until the package was opened, providing probable cause for defendant's arrest. The exact location of these events is not clear in the record, but some testimony of the officers suggests that the package was opened just outside the bus.

Under the totality...