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holding that no seizure occurred where: the police officers approached defendant in non-threatening manner; the officers' guns were not drawn; they did not attempt to detain defendant; they asked rather than demanded his name and address; and the initial encounter lasted only seconds
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No. 95SA358
Decided February 12, 1996
Interlocutory Appeal from District Court, El Paso County, The Honorable Gilbert Martinez, Judge.
RULING REVERSED AND CASE REMANDED WITH DIRECTIONS
John Suthers, District Attorney, Fourth Judicial District Ann C. Joyce, Deputy District Attorney, Colorado Springs, Colorado, Attorneys for the Plaintiff-Appellant.
Terry L. Perlet, Colorado Springs, Colorado, Attorney for Defendant-Appellee.
The prosecution brings this interlocutory appeal pursuant to section 16-12-102, 8A C.R.S. (1995 Supp.), and C.A.R. 4.1 challenging the trial court's order suppressing crystal methamphetamine obtained during a search of the defendant Johnny Maurice Melton. The trial court found that the police officers' initial contact with Melton constituted an investigatory stop that was not justified by reasonable suspicion of criminal activity. We hold that the initial encounter between the police and Melton was not an investigatory stop and that therefore the police did not need reasonable suspicion in order to approach and talk to Melton. Accordingly, we reverse the trial court's order of suppression and remand the case for further proceedings consistent with this opinion.
I.
Johnny Maurice Melton was charged with possession of a schedule II controlled substance (crystal methamphetamine) with intent to distribute, pursuant to sections 18-18-405(2)(a)(I), 8B C.R.S. (1995 Supp.), and 18-18-204, 8B C.R.S. (1995 Supp.). Melton filed a motion to suppress all evidence and statements made by him. The trial court conducted a suppression hearing at which Officer Crestin Shields and Officer Wade Lerfald testified to the following facts.
On May 7, 1995, the Colorado Springs Police Department received a tip that drugs were being sold at a house on Dauntless Court. To investigate the tip, Officer Shields and his partner set up surveillance on the house. During surveillance, Officer Shields observed two people drive up to the residence and leave after a few minutes. Shields recognized the individuals from arrests on other drug charges in the past. Shields' partner stopped the two people a short time later but found no drugs.
The next day, after acquiring further information, Shields visited one of the two individuals he had seen at Dauntless Court the day before. Shields obtained a search waiver from R.M. and searched his house. Shields found a pipe that tested positive for crystal methamphetamine. He then arrested R.M. for possession of a controlled substance.
The individual is a juvenile. In order to protect his identity, we will refer to him by his initials, R.M.
After his arrest, R.M. told the police that he knew an individual named "J" or "Johnny" who had a large quantity of crystal methamphetamine. R.M. said he had been at Johnny's house approximately one week before the arrest and had seen assault type weapons and a golf ball size rock of crystal methamphetamine. R.M. further told police that Johnny lived at 98 Saddle Mountain Road in Rockrimmon.
Approximately ten minutes after hearing this information, Officer Shields, Officer Lerfald, and Officer Terry Mason went to 98 Saddle Mountain Road. All three officers were in uniform and travelled in separate police cruisers. When they arrived at the house, they saw a man, later identified as Melton, and two women standing in the front yard.
Officer Shields and the other officers approached Melton. Officer Shields asked Melton if he lived in the house. Melton said, "Yes." Shields then asked Melton if his name was "J" or "Johnny." Melton answered that his name was "Johnny."
After learning this information, Shields asked Melton to step to the curb by the police cruiser and then instructed Lerfald to do a pat down search of Melton. Officer Shields testified that he believed a pat down search was necessary because of the information that Melton owned assault weapons. As Officer Lerfald was performing the pat down search, he discovered a fanny pack and asked Melton to remove it. Lerfald testified that the fanny pack was very full and that he felt a hard round object inside it. Both Shields and Lerfald asked Melton what was inside the pack but Melton did not answer. Lerfald then opened the pack, looked inside, and found a hard round object that appeared to be a drug. Shields then placed Melton under arrest.
The substance later field tested positive for amphetamines. The total weight was 128.2 grams, and the estimated value was $14,080.00.
After hearing this evidence, the trial court granted Melton's motion to suppress. The trial court analyzed the encounter between the police and Melton by separating it into two stages. First, the trial court considered whether Officer Lerfald's search of Melton and of the fanny pack was permissible. The trial court found that once the police officers knew Melton's identity, they had a reasonable and articulable suspicion that Melton might be armed and dangerous that justified the search of the fanny pack.
Second, the trial court analyzed the initial contact with Melton, when the officers approached him and asked his name and address. The court found that when they approached Melton, the police officers could not have had a reasonable suspicion that Melton had engaged in criminal activity. In particular, until the police officers asked Melton if his name was "J" or "Johnny," the police officers had no reason to believe that the individual they observed standing in the yard was involved in criminal activity. Because the trial court found that the police officers' initial contact with Melton was not justified by reasonable suspicion, it granted Melton's motion to suppress.
The prosecution requested that the trial court reconsider its ruling. It argued that the police officers' initial contact with Melton was a consensual encounter and that the Fourth Amendment to the United States Constitution was not implicated. The trial court agreed to reconsider its ruling and continued the proceedings. The trial court determined that the encounter between Melton and the police was an investigatory stop, unsupported by reasonable suspicion, and not a consensual encounter. It therefore reaffirmed its suppression order.
The trial court specifically stated that its ruling would not become final for purposes of appeal until it ruled on the motion to reconsider.
The prosecution then filed the present interlocutory appeal. We now hold that the police officers' initial contact with Melton was not a seizure or an investigatory stop under the Fourth Amendment to the United States Constitution and Article II, section 7 of the Colorado Constitution, but rather was a consensual interview. As such, the police did not need a reasonable suspicion of criminal activity in order to interview Melton. Therefore, we reverse the trial court's order of suppression and remand the case for further proceedings.
Pursuant to C.A.R. 4.1, the prosecution must file an interlocutory appeal within ten days of the entry of the appealable order. A failure to file an interlocutory appeal within a timely manner would deprive this court of jurisdiction. See People v. Donahue, 750 P.2d 921, 922 (Colo. 1988). In this case, the prosecution filed its notice of appeal on October 30, 1995. This was within ten days of the trial court's ruling regarding the prosecution's motion to reconsider issued on October 23, 1995. The appeal, however, was not filed within ten days of the trial court's original ruling, issued on October 12, 1995, regarding Melton's suppression motion. The prosecution may not use a motion to reconsider purely as a device to extend the time in which to bring an interlocutory appeal or as a prosecutorial fiction in order to delay criminal proceedings. See People in Interest of J.C., 844 P.2d 1185, 1187 (Colo. 1993) (indicating that filing a motion to reconsider in order to circumvent the appeals process is impermissible); Donahue, 750 P.2d at 922-23 (disapproving of prosecution's tactic of voluntarily dismissing charges and then appealing the court's suppression order in an effort to avoid untimely interlocutory appeal). However, if a judge reconsiders a ruling on a motion to suppress, the prosecution may appeal the modified ruling within the time limitations of C.A.R. 4.1. People in Interest of J.C., 844 P.2d at 1188 (finding that since appeal was taken within ten days of modified ruling court had jurisdiction to hear case). In this case, there is no indication in the record that the prosecution's motion to reconsider was initiated as an attempt to circumvent the appeals process or unnecessarily delay the proceedings. Since the appeal was brought within ten days of the modified ruling, we have jurisdiction to hear the case.
The trial court's sole reason for granting Melton's suppression motion was its finding that the police officers' initial approach and questioning of Melton was not supported by reasonable suspicion of criminal activity. The court specifically ruled that the police had reasonable suspicion to search Melton and the fanny pack once they identified Melton as Johnny. Therefore, we limit our review of the trial court's rulings to whether the initial contact between the police and Melton was proper. We do not consider at this time whether there was sufficient reasonable suspicion to justify the search of Melton and the fanny pack.
II.
The Fourth Amendment to the United States Constitution and Article II, section 7 of the Colorado Constitution provide that the people shall be secure in their persons from unreasonable searches and seizures. "The Fourth Amendment does not proscribe all contact between police and citizens, but is designed `to prevent arbitrary and oppressive interference with the privacy and personal security of individuals.'" INS v. Delgado, 466 U.S. 210, 215 (1984) (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976)). Thus, only when police-citizen contact impermissibly intrudes upon an individual's personal security or privacy are the United States or the Colorado Constitutions implicated. In Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968), the Supreme Court explained the difference between a seizure and other police-citizen encounters when it stated: "Obviously, not 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." See also United States v. Mendenhall, 446 U.S. 544, 552 (1980) (opinion of Stewart, J.) (explaining that only when an individual is seized is there any foundation for invoking constitutional safeguards).
Case law has identified three types of police-citizen encounters: 1) arrest, 2) investigatory stop, and 3) consensual interview. People v. T.H., 892 P.2d 301, 303 n. 3 (Colo. 1995); People v. Trujillo, 773 P.2d 1086, 1089 (Colo. 1989). The first two, an arrest and an investigatory stop, are seizures and implicate constitutional protections. Therefore, they must be justified by probable cause and reasonable suspicion of criminal activity, respectively. People v. Johnson, 865 P.2d 836, 842 (Colo. 1994). The third, a consensual interview, is not a seizure and thus does not implicate the protections of the Fourth Amendment and Article II, section 7. Id.; see generally 4 Wayne R. LaFave, Search Seizure § 9.3 (3d ed. 1996) (discussing police-citizen encounters that do not rise to the level of an investigatory stop).
During a consensual encounter, a police officer seeks the voluntary cooperation of an individual by asking non-coercive questions. People v. Thomas, 839 P.2d 1174, 1177 (Colo. 1992). The individual is free to leave at any time during such an encounter or to ignore the police officer's questions. Id. Hence, the defendant is not seized within the meaning of the Fourth Amendment. Id.; see also Florida v. Royer, 460 U.S. 491, 497 (1983) (opinion of White, J.) (stating that law enforcement officers do not violate the Fourth Amendment by approaching an individual and asking him if he is willing to answer some questions).
The test for determining if an encounter between a police officer and an individual is consensual is "whether a reasonable person under the circumstances would believe he or she was free to leave and/or to disregard the official's request for information." Thomas, 839 P.2d at 1177-78; see also Florida v. Bostick, 501 U.S. 429, 439 (1991); Delgado, 466 U.S. at 215. This is an objective determination and it must be made based on the totality of the circumstances surrounding the encounter. Johnson, 865 P.2d at 842-43. In addition, the reasonable person test presupposes an innocent individual. Id.
When evaluating the totality of the circumstances, we have noted that a police-citizen encounter does not become a seizure simply because citizens may feel an inherent social pressure to cooperate with the police. Id. at 842. Similarly, a consensual encounter does not become an investigatory stop because the police do not inform the individual that he or she is free to leave. Delgado, 466 U.S. at 216. "While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response." Id. Rather, a court must consider the totality of the circumstances to determine whether the police exercised force or authority, or whether the police merely approached to conduct a consensual interview.
After a review of the totality of the circumstances surrounding the police officers' initial contact with Melton, we conclude that Melton was not subjected to a Fourth Amendment seizure when the police officers approached him and asked him his name and address. The officers approached in a non-threatening manner without their guns drawn. They did not attempt to detain Melton. They asked rather than demanded his name and address. In addition, the initial encounter lasted only seconds. Aside from the inherent pressure felt by any citizen to cooperate with law enforcement officers, the circumstances of this encounter were not so intimidating as to communicate to Melton that he was not free to leave or to decline to respond.
Although the issue was only peripherally raised by the parties below, was not ruled on by the trial court, and was not argued in the briefs here, we do note that the encounter between Melton and the police may have occurred on private property. Most police-citizen encounters that courts have characterized as consensual in nature have occurred on public property. See, e.g., Bostick, 501 U.S. 429 (indicating that encounter took place on public bus); Johnson, 865 P.2d 836 (indicating encounter took place in airport). We do not view the location of the police-citizen encounter as dispositive of whether the encounter is consensual or not. Rather, the location of the encounter is one factor to consider when determining whether a reasonable person would believe he or she is free to leave or disregard the official's request for information. An uninvited or unwelcomed intrusion by the police on private property may seem more coercive to a reasonable individual than a casual approach by the police in a public place. See United States v. Bloom, 975 F.2d 1447, 1453-54 (10th Cir. 1992) (holding that a police-citizen encounter that took place in private train roomette outside of public view was one factor to consider when determining if police-citizen encounter constituted an investigatory stop); United States v. Ward, 961 F.2d 1526, 1531 (10th Cir. 1992) (holding that while the non-public setting of the police-citizen encounter in a small private roomette on a train was not dispositive it supported the finding that a reasonable person would not have felt free to decline the police officer's request for information). In this case, however, we have concluded that Officer Shields' approach and questioning of Melton was non-coercive and non-threatening and therefore, consensual in nature. The trial court made no findings to indicate that this encounter was rendered more coercive by virtue of the fact that the police approached Melton while he was standing on the front lawn of a private residence.
The fact that the police officers went to Melton's house intending to question him and obtain a search waiver does not affect our analysis. The subjective suspicions of the police do not distinguish a consensual encounter from an investigatory stop. In fact, in most cases regarding consensual encounters the police approach individuals because they have suspicions about them. See, e.g., Mendenhall, 446 U.S. at 547 (indicating that police approached defendant because the defendant fit drug courier profile); Royer, 460 U.S. at 493 (opinion of White, J.) (same); Johnson, 865 P.2d at 837 (indicating that police approached defendant after watching him sprint through airport with a pillow case stuffed with clothes and a brown tweed bag). Allowing police to approach innocent citizens and ask them questions but not approach those suspected of crime seems to provide greater protection to criminals than others. The Fourth Amendment, however, protects all citizens equally.
Further, unless the police officer's subjective intent in approaching the individual is communicated to that individual, it is not relevant to the determination of whether the encounter is a stop or a consensual encounter. See Mendenhall, 446 U.S. at 554 n. 6 (opinion of Stewart, J.) (stating "that the subjective intention of the DEA agent in this case to detain the respondent, had she attempted to leave, is irrelevant except insofar as that may have been conveyed to the respondent"). The police are free to seek the help of any citizen by asking questions as are citizens equally free to decline to respond or walk away. In determining whether a police-citizen encounter is consensual, the relevant inquiry is whether a reasonable individual would believe he or she was free to leave or to disregard the official's request. As long as the police officers do not communicate their motives in making contact with the individual, these motives will not affect a reasonable individual's perception of the situation. Therefore, they do not affect the determination of whether the encounter constitutes a seizure.
In this case, there is no indication that the police made any statement to Melton or otherwise communicated their reason for approaching him prior to the pat down search. As such, the officers' hopes that they might obtain a search waiver from Melton do not affect our determination as to whether a reasonable person in Melton's position would have felt free to leave or disregard the officers' questions.
III.
We conclude that under the circumstances of this case, the police officers' initial encounter with Melton was consensual in nature and was not an investigatory stop. Therefore, the police did not need reasonable suspicion to approach Melton and ask him where he lived and whether his name was "J" or "Johnny." We conclude that the trial court erred in holding that an unlawful seizure of Melton took place. Since a seizure did not occur until the police asked Melton to walk over to the police car for the pat-down search, the initial contact with Melton did not need to arise out of some reasonable suspicion that Melton had committed a crime. We reverse the trial court's suppression order and remand the case for further proceedings consistent with this opinion.
JUSTICE MULLARKEY specially concurs, and JUSTICE KIRSHBAUM and JUSTICE SCOTT join in the special concurrence.
JUSTICE SCOTT specially concurs.