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In Hampe, the court of appeals found an adequate basis to suspect criminal activity and conduct a stop under circumstances similar to this one.
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No. 94CA0399
Decided May 4, 1995 Opinion Modified, and as Modified, Petition for Rehearing DENIED June 22, 1995
Appeal from the District Court of Arapahoe County Honorable John P. Leopold, Judge No. 93CV1860.
JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS.
Bader Villanueva, P.C., Steven M. Feder, Denver, Colorado, for Petitioner-Appellee.
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Mark W. Gerganoff, Assistant Attorney General, Denver, Colorado, for Respondents-Appellants.
The Department of Revenue appeals from the trial court judgment reversing its revocation of the driver's license of petitioner, Robert Keith Hampe, for driving with an excessive blood alcohol content. We reverse and remand the cause to the trial court for reinstatement of the administrative order.
After midnight on June 9, 1993, an Arapahoe County sheriff's deputy responded to a call to assist another officer who had stopped a vehicle. When the deputy arrived the officer was conducting a roadside sobriety test of a woman. He pointed out to the deputy a vehicle he had seen pull into an empty parking lot across the street.
The officer explained to the deputy that the driver of the vehicle (later identified as petitioner) had parked and turned off the headlights, apparently to watch the officers. The deputy then observed the vehicle move out of the parking lot and toward them between two buildings, with its headlights still off. The vehicle stopped on a dirt road running toward the street, directly across from the officers, but back from the edge of the street. Its motor was running, parking lights on, headlights off.
The officer confirmed it was the same vehicle he had seen turn into the parking lot. Because of these suspicious activities and because of concern for their safety, the officer requested that the deputy investigate.
The deputy pulled up behind the vehicle with the overhead lights on the patrol car activated, approached on foot, and shined his spotlight on the driver. Petitioner was talking on a car phone. He seemed confused and disoriented in trying to talk on the phone, respond to the deputy, and watch the activities at the traffic stop. The deputy asked petitioner to hang up the phone.
Petitioner identified himself and explained that it was his wife involved in the roadside sobriety test. This reduced the deputy's suspicions. However, the deputy detected the odor of alcohol on petitioner's breath and observed that his eyes were watery and bloodshot, his speech slurred. Based on these observations, the deputy asked petitioner if he had been drinking. His initial reply was a denial, but then he admitted that he had. At that point the deputy requested that petitioner take a roadside sobriety test, which he failed.
Petitioner was charged with driving under the influence, pursuant to § 42-4-1202(1)(a), C.R.S. (1993 Repl. Vol. 17), and driving with excessive blood alcohol content, pursuant to § 42-4-1202(1.5)(a), C.R.S. (1993 Repl. Vol. 17). At the administrative hearing to determine whether his driver's license should be revoked under the authority of § 42-2-122.1, C.R.S. (1993 Repl. Vol. 17), petitioner challenged the validity of the investigatory stop. The hearing officer determined that the deputy did not have to describe what crime was about to be committed to justify the investigatory stop and concluded that the stop was proper.
Petitioner sought review in the district court, pursuant to § 42-2-122.1(9), C.R.S. (1993 Repl. Vol. 17). The district court reversed. It concluded that the officer's suggestion that petitioner's conduct was suspicious, without more facts, did not support an articulable suspicion of criminal activity, past, present, or future, and that the officer had acted on a "hunch" or an "inchoate and unparticularized suspicion." It therefore held that the investigatory stop exceeded constitutional authority.
On appeal, the Department of Revenue does not contest that the contact with petitioner constituted a seizure for purposes of constitutional analysis. It instead contends that the district court erred in holding that the deputy's investigatory stop constituted an unreasonable seizure under the Fourth Amendment. In the circumstances presented here, we agree.
An investigatory stop short of a traditional arrest may be authorized on less than probable cause without violating the Fourth Amendment. To justify this limited intrusion, three conditions must exist: (1) a police officer must have an articulable basis in fact for suspecting that criminal activity has occurred or is about to take place; (2) the purpose of the intrusion must be a reasonable one; and (3) its scope and character must be reasonably related to its purpose. Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971); see People v. Rahming, 795 P.2d 1338 (Colo. 1990); see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
When a trial court makes the initial determination of whether an investigatory stop was reasonable, its ultimate conclusion of constitutional law is subject to correction by a reviewing court if it is inconsistent with or unsupported by evidentiary findings, as is the application of an erroneous legal standard to the facts of the case. However, in evaluating the factors relied upon to justify the investigatory stop, a reviewing court must defer to the trial court's findings of historical fact and will not overturn them if supported by competent evidence in the record. People v. Rahming, supra.
These same standards of review may appropriately be applied in this case to the initial findings and conclusions of the administrative hearing officer. Cf. deKoevend v. Board of Education, 688 P.2d 219 (Colo. 1984); People ex rel. Woodard v. Brown, 770 P.2d 1373 (Colo.App. 1989); see generally J. Shechter, De Novo Judicial Review of Administrative Agency Factual Determinations Implicating Constitutional Rights, 88 Colum. L. Rev. 1483 (1988).
Suspicion of criminal activity, the first element in the Stone test, must be judged by an objective standard that takes into consideration the facts and circumstances known to the officer immediately prior to the investigatory stop. People v. Rahming, supra. A subjective and unarticulated hunch of criminal activity will not support the requirement that reasonable suspicion exists before the investigatory stop is made. People v. Trujillo, 773 P.2d 1086 (Colo. 1989). However, there can be circumstances in which wholly lawful conduct may justify the suspicion that criminal activity is afoot. People v. Rahming, supra.
Circumstances commonly raising suspicions of criminal activity, at least when present in some combination, include the lateness of the hour, the character of the area, the reaction to the presence of the police, and whether a companion has been or is being arrested. See generally W. LaFave, Search and Seizure § 9(3) (2d ed. 1987); see also Jeffreys v. United States, 312 A.2d 308, 310 (D.C.App. 1973) ("[T]he sight of a parked car in a residential neighborhood almost three hours after midnight with its headlights turned off and its motor running, was in itself something which vigilant police officers could well have deemed suspicious . . . [and] the police would have been warranted in inquiring of the driver his identity and his business there."). While suspicions about a companion normally center on concern with possible involvement in the crime being investigated, concern with retaliatory actions by a companion acting suspiciously is no less reasonable or substantial. Cf. People v. Sutherland, 886 P.2d 681 (Colo. 1994).
Petitioner stresses that the evidence established he was at least one hundred feet away from the police activity and that his wife testified she had told the officer conducting her roadside sobriety test, who was not present at the hearing, that it was her husband in the vehicle across the street. That information apparently had not been conveyed to the deputy before he began his investigation of petitioner.
However, in an isolated area late at night, a vehicle had turned into a deserted parking lot for a church and preschool. The vehicle was positioned to allow the officer conducting the traffic stop to be watched, and the vehicle was then moved and parked directly across the street from the police activities. The vehicle had been maneuvered to avoid attracting attention and positioned to avoid police scrutiny, with its motor running, on a dirt road leading toward the officers.
The officers at that point were vulnerable to whatever danger the occupant or occupants of that vehicle might pose. Knowledge that the woman who was initially stopped claimed that the driver of the vehicle was her husband may have reduced suspicion. However, the officers were not required to accept her statement without question.
Furthermore, the statement did not explain the driver's conduct and did not necessarily negate any concern that the driver or any other occupant of the vehicle was about to engage in criminal activity that would jeopardize the safety of the officers. If the driver were to have pulled forward, such movement would have been directly toward the officers, increasing rather than decreasing the potential threat.
The hearing officer found that any police officer who in these circumstances was not concerned with safety would be putting himself or herself in jeopardy and that a reasonable police officer would make a limited investigation to determine what was afoot. The evidence supports the findings of the hearing officer. We will therefore not disturb those findings. See People v. Greer, 860 P.2d 528 (Colo. 1993); see also Colorado State Board of Nursing v. Lang, 842 P.2d 1383 (Colo.App. 1992) (when conflicting inferences are fairly possible, the reviewing court may not replace the choice of the finder of fact).
The second condition in determining whether the investigatory stop was justified is that its purpose must have been reasonable. Here, it is uncontested that the purpose was to identify the occupant or occupants of the vehicle, a purpose already addressed by our supreme court: "[W]hen an officer reasonably suspects that the person has committed a crime or is about to commit a crime and the officer has not identified the person [the officer] legally may stop [the suspect] to question him about his identity." Stone v. People, supra, 174 Colo. at 509, 485 P.2d at 497.
We must finally consider whether the scope and character of the investigatory stop were reasonably related to its purpose. Although in this case the Department does not contest that the encounter from the outset constituted an investigatory stop, compare Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) with Stone v. People, supra, the intrusion on petitioner's rights was neither substantial nor greater than necessary in these circumstances. The deputy did stop behind petitioner's vehicle with his overhead lights activated and used a spotlight in approaching the vehicle. However, the overhead lights served to make his identity as a police officer obvious: his actions were consistent with recognition that investigatory stops involving vehicles are "especially fraught with danger to police officers." See Michigan v. Long, 463 U.S. 1032, 1047, 103 S.Ct. 3469, 3480, 77 L.Ed.2d 1201, 1218 (1983).
After approaching the vehicle, the deputy did no more than make a routine preliminary request for information. It was only after the deputy detected signs of alcohol consumption that he asked petitioner if he had been drinking, which led to the roadside sobriety test and petitioner's arrest.
We have weighed the officers' legitimate concern for safety, aroused by petitioner's suspicious activities, against the extent of the intrusion involved in the investigatory stop. In light of the unique circumstances confronting the officers, we conclude the hearing officer correctly determined that the investigatory stop did not violate petitioner's constitutional right to be secure against unreasonable seizure.
The judgment is reversed, and the cause is remanded to the trial court for reinstatement of the administrative order.
JUDGE CRISWELL concurs.
JUDGE ROY dissents.