Hampe v. Tipton

899 P.2d 325, 1995 WL 259862
CourtColorado Court of Appeals
DecidedJune 22, 1995
Docket94CA0399
StatusPublished
Cited by8 cases

This text of 899 P.2d 325 (Hampe v. Tipton) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hampe v. Tipton, 899 P.2d 325, 1995 WL 259862 (Colo. Ct. App. 1995).

Opinions

Opinion by

Judge BRIGGS.

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 sheriffs 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. [327]*327The 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(l)(a), C.R.S. (1993 RephVol. 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 ReplVol. 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 un-particularized 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 ease. 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.

[328]*328These 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 pri- or to the investigatory stop. People v. Rahming, supra. A subjective and unarticu-lated 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.”).

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Hampe v. Tipton
899 P.2d 325 (Colorado Court of Appeals, 1995)

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899 P.2d 325, 1995 WL 259862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hampe-v-tipton-coloctapp-1995.