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stating that when the conservation officers had no reason to believe that the vehicle had been involved in hunting or was in violation of the state's wildlife laws "[t]he conduct in question parallels that condemned in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660, in that the * * * vehicle was stopped merely to see if it had been involved in the commission of a hunting infraction. Nothing that was known by the wildlife officers provided them with a reason to believe that a violation of the wildlife laws was occurring, had occurred, or was about to occur."
Summary of this case from State v. ColosimoOpinion
No. 91SA396
Decided May 11, 1992.
Interlocutory Appeal from the District Court, Las Animas County Honorable Jesse C. Manzanares.
Jon Neil Barclay, District Attorney, Third Judicial District, for Plaintiff-Appellant.
David F. Vela, Colorado State Public Defender, Cynthia Mares, Deputy State Public Defender, for Defendant-Appellee.
This is an interlocutory appeal from an order suppressing evidence seized in an investigatory stop. The defendant, Frank Coca, filed a motion to suppress the evidence seized as a result of the investigatory stop and the trial court granted the motion. We affirm the trial court.
After dark, at approximately 6:00 p.m., on November 10, 1990, the defendant was driving a Toyota pickup truck in a remote area near the intersection of Mavaricio Canyon Road and Apishpapa Canyon Road. As he approached the intersection, Officer Crosby of the Colorado Division of Wildlife stopped the truck pursuant to the instructions of Bob Holder, a fellow wildlife officer. Officer Crosby searched the Coca truck and found a wild turkey, which had been recently shot, under a tarpaulin in the back of the truck.
The issue on appeal is whether there was a reasonable and articulable suspicion to support the investigatory stop and search of the vehicle. The stop occurred during the hunting season for small game and water fowl, and the last weekend of a combined deer and elk season. Not long before the stop, a landowner in the Mavaricio Canyon area told Officer Holder that she had heard a shot outside of her house. Officer Holder then contacted a group of hunters to determine whether they had shot any animals in the area. They reported that they could not hunt because it was nightfall and were checking the area out for a hunt the next day. They told the officer they had seen a Chevrolet truck driving slowly in the area. Based on that report, Officer Holder advised Officer Crosby to cover the road so he could investigate the situation. He did not give Officer Crosby a description of the truck to be stopped.
While investigating, Officer Holder saw a truck going down the Mavaricio Canyon Road at a slow rate of speed with its lights on and thought it might be involved in a possible hunting violation. He advised Officer Crosby by radio to stop the truck. The speed limit on Mavaricio Canyon Road was thirty miles per hour. In Officer Crosby's opinion, Coca's truck was traveling at a speed of five to ten miles per hour. When Officer Crosby stopped the truck, Coca was driving and his son, Nathan, was in the passenger seat with a .22 rifle between his legs with the muzzle pointed up. Officer Crosby checked the firearm to make sure it was unloaded and then examined another firearm in the truck and found that it was unloaded. He asked Coca and his son if he could take a look in the back of the truck. In his search he found a wild turkey under a tarpaulin. After being questioned by the officer, Nathan admitted that he had shot the turkey.
Officer Crosby testified that he thought he saw Nathan remove the clip from the rifle, but that he checked the rifle and found that there was no shelling in the chamber of the rifle and no violation of the statute.
A number of charges, including both felonies and misdemeanors, were filed as a result of the stop and the events occurring immediately after the stop. The trial court found that there was no reasonable and articulable suspicion to support the stop and suppressed the wild turkey seized from the back of the Coca truck as evidence to prove the wildlife offenses charged.
A law enforcement officer, acting on less than probable cause, can detain and, to a limited extent, interrogate a person or persons detained as part of an investigative stop. See Terry v. Ohio, 392 U.S. 1 (1968); Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971); § 16-3-103, 8B C.R.S. (1986).
To determine whether an investigative stop was based upon a reasonable and articulable suspicion and was constitutionally permissible, a trial court must consider "the facts and circumstances known to the officer at the time of the encounter." People v. Savage, 698 P.2d 1330, 1335 (Colo. 1985); People v. Trujillo, 773 P.2d 1086, 1089 (Colo. 1989).
An officer's subjective and unarticulated hunch that criminal acts have occurred will not support the reasonable suspicion requirement necessary for an investigatory stop. People v. Wells, 676 P.2d 698 (Colo. 1984). Under certain conditions, however, a law enforcement officer acting on less than reasonable suspicion may briefly detain an individual without running afoul of protected constitutional rights. We recognized an example of such a stop in People v. Rister, 803 P.2d 483 (Colo. 1990), when we declared that the state's substantial interest in preventing the loss of life and damage to property caused by drunk drivers permitted the minor inconvenience to highway travelers of a stop for the purpose of determining whether the operator of a motor vehicle was intoxicated and, therefore, did not constitute an unreasonable seizure.
The state has a legitimate interest in protecting wildlife, and the General Assembly has enacted a series of laws to protect the state's interest and the constitutional rights of Colorado citizens. Wildlife officers are afforded the power and authority to arrest persons charged with violating state game laws. § 33-6-101(1), 14 C.R.S. (1984). A wildlife officer can demand the production of a license so long as the officer has reason to believe that a person is exercising or has exercised the benefits of a state hunting or fishing license. § 33-6-101(2), 14 C.R.S. (1984). Check stations are even permitted to aid in the management of wildlife and enforcement of the wildlife rules in certain circumstances. § 33-6-111(2), 14 C.R.S. (1984). Failure to stop at a check station is a criminal offense. § 33-6-111(2), 14 C.R.S. (1984).
Neither Wildlife Officer Holder nor Officer Crosby testified that they had established a check station on the weekend in question or that they had any reason to believe that the slow-moving vehicle had been involved in hunting or was in violation of the state wildlife laws. The conduct in question parallels that condemned in Delaware v. Prouse, 440 U.S. 648 (1979), in that the Coca vehicle was stopped merely to see if it had been involved in the commission of a hunting infraction. Nothing that was known by the wildlife officers provided them with a reason to believe that a violation of the wildlife laws was occurring, had occurred, or was about to occur. Compare People v. Contreras, 780 P.2d 552 (Colo. 1989) (anonymous tip of a car strip in progress that also described suspects' purple car, when corroborated by officers' observations of purple car and stripped car, provided specific and articulable basis to believe a crime had occurred) with People v. Garcia, 789 P.2d 190 (Colo. 1990) (anonymous tip, even though corroborated by police observation, did not provide reason to suspect criminal activity since information corroborated was commonplace and unremarkable). The report that a shot was fired in an area that was open to hunting is no evidence that supports a stop. The observance of deer in the area where the shot was fired does not support Officer Holder's conclusion that Coca's Toyota truck should be stopped. Driving slowly with the lights on after dark on a mountain dirt road provides no basis for a stop. Here, the totality of the circumstances did not provide a reasonable and articulable basis to support the stop. See People v. Mascarenas, 726 P.2d 644 (Colo. 1986); People v. Hazelhurst, 662 P.2d 1081 (Colo. 1983). No testimony was elicited that this area had previously been associated with incidents of illegal poaching or night hunting. Nothing, apart from Officer Holder's hunch, supported the stop.
Although a checkpoint had not been established, the trial court found that any vehicle coming down that road that evening would have been stopped. The trial court's findings are supported by the record and are sustained. See People v. Hampton, 758 P.2d 1344 (Colo. 1988) ("[trial] court's factual findings are entitled to deference and will not be overturned if supported by competent evidence in the record"); cf. People v. Raffaelli, 647 P.2d 230 (Colo. 1982) (trial court's findings of fact supporting suppression of confession as involuntary will be upheld on review when supported by the record); People v. Terry, 538 P.2d 466, 189 Colo. 177 (1975) (reviewing court would not second guess trial judge's determination that evidence should be suppressed when supported by evidence in the record). There was no articulable and specific basis in fact for suspecting that criminal activity had occurred, was occurring, or was about to occur that would support the stop and search of the Coca vehicle on a remote road in Las Animas County.
Accordingly, we affirm the trial court's suppression order.
JUSTICE VOLLACK dissents, and CHIEF JUSTICE ROVIRA and JUSTICE MULLARKEY join in the dissent.