Opinion
No. 96SA368
December 16, 1996
Interlocutory Appeal from the District Court, La Plata County Honorable James D. Childress, Senior Judge
RULING REVERSED.
Sarah F. Law, District Attorney, Sixth Judicial District Durango, Colorado, Attorney for Plaintiff-Appellant.
David F. Vela, Colorado State Public Defender Guillermo Garibay, Deputy State Public Defender Durango, Colorado, Attorneys for Defendant-Appellee.
In this interlocutory appeal, the People seek review of an order entered by the La Plata County District Court suppressing evidence and observations which were the result of a police contact and subsequent arrest. We reverse the trial court's ruling.
I.
On the night of Friday, June 7, 1996, Officer Deck Shaline (Officer Shaline) and Officer Lars Helton (Officer Helton) were on bicycle patrol in the downtown Durango area. At approximately 10:00 p.m., the officers approached a parking lot which was not well lit. The officers observed two men, Steven Payne (Payne) and the defendant, Hughy Dickinson (Dickinson), sitting in a parked automobile in the lot. The automobile's engine was not running, the headlights were turned off, and the two men appeared to be bent over something in the front seat.
Officer Shaline approached the driver's side window which appeared to be broken out or open. When Officer Shaline approached the window, he shined his flashlight in the vehicle and observed both men with cash in their hands. Officer Shaline also observed Dickinson, who was in the front passenger seat, holding a small plastic bag containing a white powdery substance. Dickinson cupped the small bag in his hand, and Officer Shaline ordered Dickinson to show what he had in his hand. After Officer Shaline repeated his order several times, Dickinson dropped the small bag between his legs and showed the officer his empty hands. Officer Shaline then ordered Dickinson to show what he had dropped, whereupon Dickinson grabbed the bag, shoved it into his mouth, exited the vehicle, and fled.
Although Officer Shaline identified himself as a police officer at some point after approaching the vehicle, it is unclear from the record when he did so.
Officer Shaline then chased Dickinson and grabbed his throat to prevent him from swallowing the bag. Dickinson struggled with Officer Shaline until Dickinson swallowed the bag, at which time the officer placed him under arrest. In the meantime, Officer Helton secured the arrest of the vehicle's driver, Payne.
Dickinson was subsequently charged with criminal attempt to distribute a schedule II controlled substance, tampering with physical evidence, and resisting arrest. After Dickinson moved to suppress all of the evidence, the trial court granted his motion, finding that (a) Dickinson had a reasonable expectation of privacy in the vehicle; (b) Officer Shaline approached the vehicle without reasonable suspicion of criminal activity; and (c) Officer Shaline improperly searched the vehicle by shining a flashlight into it.
II.
The first issue before us is whether Officer Shaline properly initiated contact with Dickinson and Payne by approaching the vehicle in which they sat.
In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court held that law enforcement personnel may, in compliance with the Fourth Amendment, conduct brief investigatory stops based on reasonable suspicion. Id. at 30-31. Additionally, the Court stated that some encounters between the police and citizens do not implicate the Fourth Amendment:
[N]ot all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.
Id. at 19 n. 16. Hence, the United States Supreme Court has held that law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place. Florida v. Royer, 460 U.S. 491, 497 (1983). Moreover, the mere fact that an officer identifies himself as a police officer, without more, does not convert the encounter into a seizure. Id.
Colorado case law is consistent with the United States Supreme Court's decisions and recognizes the existence of police-citizen encounters which do not implicate the protections of Article II, Section 7, of the Colorado Constitution or the Fourth Amendment of the United States Constitution. People v. Johnson, 865 P.2d 836, 842 (Colo. 1994). Encounters which do not trigger constitutional protections are those "'in which no restraint of the liberty of the citizen is implicated.'" People v. Trujillo, 773 P.2d 1086, 1089 (Colo. 1989) (quoting United States v. Black, 675 F.2d 129, 133 (7th Cir. 1982)); see also People v. T.H., 892 P.2d 301 (Colo. 1995).
In the current case, the trial court granted Dickinson's motion to suppress based on its conclusion that Officer Shaline did not have reasonable suspicion sufficient to justify approaching the vehicle in which Dickinson and Payne sat. We reverse because Officer Shaline's action of merely approaching the vehicle and identifying himself as a police officer did not implicate the protections of the Fourth Amendment. The officer did not restrain the liberty of the vehicle's occupants by merely approaching them; the encounter therefore did not rise to the level of an investigatory stop. As such, the trial court erroneously applied the reasonable suspicion standard to evaluate Officer Shaline's initial contact with the vehicle's occupants. We hold that the police officer's initial contact with Dickinson and Payne was proper because it did not violate any constitutional protections.
III.
The next issue for our determination is whether Officer Shaline's use of a flashlight to illuminate the inside of the vehicle after he approached it was constitutionally permissible.
The United States Supreme Court has held that shining a flashlight to illuminate the interior of a vehicle or building does not constitute a search that triggers Fourth Amendment protections. United States v. Dunn, 480 U.S. 294, 305 (1987); Texas v. Brown, 460 U.S. 730, 739-40 (1983). Additionally, there is no legitimate expectation of privacy in the interior of an automobile when it may be viewed from outside the vehicle by either passersby or police officers. Brown, 460 U.S. at 740. Likewise, we have held that the mere observation by government officials of that which is plainly visible to anyone does not constitute a search for constitutional purposes. Hoffman v. People, 780 P.2d 471, 473 (Colo. 1989). Moreover, a police officer's use of a flashlight to illuminate the inside of a vehicle does not cause the officer's viewing to become a search. People v. Romero, 767 P.2d 1225, 1227 (Colo. 1989). We have noted that in determining whether a police officer is conducting a "search" within the meaning of the Fourth Amendment, it is not determinative if the officer shines a flashlight on the object. Henderson v. People, 879 P.2d 383, 389-90 n. 8 (Colo. 1994).
In the current case, Officer Shaline shined his flashlight into the vehicle as he approached it and made observations of items which were plainly visible to anyone. This action, by itself, does not constitute a search of the vehicle. As such, the trial court erroneously determined that Officer Shaline "was not justified in the flashlight search of the car." We therefore hold that Officer Shaline's use of a flashlight to illuminate the interior of the vehicle was proper and did not implicate Fourth Amendment protections.
The vehicle in this case was parked in a lot open to the public.
IV.
We next determine whether Officer Shaline had probable cause to arrest Dickinson after he approached the vehicle and illuminated the vehicle's interior with his flashlight.
To be valid, a warrantless arrest must be supported by probable cause. People v. Washington, 865 P.2d 145, 147 (Colo. 1994). Probable cause to arrest exists when facts and circumstances within the arresting officer's knowledge are sufficient to support a reasonable belief that a crime has been or is being committed by the person arrested. Id. In determining whether there is probable cause to arrest, the totality of circumstances known to the officer at the time of arrest must be considered. Id. As the term suggests, probable cause deals with probabilities, not certainties, and it is sufficient if the officer reasonably believed that the person arrested committed a crime. Id.
In the current case, Officer Shaline approached the vehicle and shined his flashlight into its interior. He then observed Dickinson and Payne holding cash in their hands, and also observed Dickinson holding a small plastic bag containing a white powdery substance. These facts and circumstances were sufficient to support a reasonable belief by Officer Shaline that a crime related to controlled substances had been or was being committed by Dickinson. Consequently, Officer Shaline had probable cause to arrest Dickinson at that time.
V.
In summary, Officer Shaline's conduct did not implicate Fourth Amendment protections when he approached the vehicle in which Dickinson and Payne sat because this action did not constitute an investigatory stop. Officer Shaline's conduct similarly did not implicate the Fourth Amendment when he shined his flashlight into the vehicle because this action did not constitute a search. When Officer Shaline observed Dickinson holding the cash and the small plastic bag containing a powdery white substance, he had probable cause to arrest Dickinson. We therefore reverse the trial court's suppression of the observations and evidence which were the result of the police contact and subsequent arrest.
JUSTICE SCOTT specially concurs.