People v. Archuleta

980 P.2d 509, 1999 Colo. J. C.A.R. 1192, 1999 Colo. LEXIS 202, 1999 WL 115191

• Court: Supreme Court of Colorado
• Decided: March 8, 1999
• Docket: 98SA356
• Status: Published

Opinions

Justice KOURLIS

delivered the Opinion of the Court.

This case comes before us on interlocutory appeal from a trial court order suppressing evidence in a drug prosecution. Because we conclude that under the circumstances of this case, a police officer’s actions in chasing the defendant and then approaching him with his gun drawn did not offend the Fourth Amendment, we reverse the trial court order.

I.

On the evening of May 10, 1998, Officer Daniel Felkins of the Denver Police Department was in his marked vehicle patrolling the area surrounding the 2100 block of Larimer Street in Denver between 10:00 p.m. and 11:00 p.m. The officer noticed three men “huddled together” in the dark alley by the back door of the El Charrito bar. Officer Felkins testified that because the area is known for illicit drug activity, he suspected that these individuals might be engaged in a drug transaction.¹

Acting on this general suspicion, Officer Felkins circled around once, saw the men again, parked his car, and approached them. Upon seeing the officer, one of the men in the group, Jesse Archuleta, took off running. Officer Felkins chased Archuleta, who ran up 21st Street toward Market Street, up the alley between Larimer Street and Market Street and then back down Larimer Street to the front door of the El Charrito. As he ran into the bar, he knocked over a bicyclist who was in the entryway.

Officer Felkins followed Archuleta into the building. He asked a person in the bar where Archuleta had gone. The person pointed to the dining area at the back of the restaurant, which was not occupied by patrons at that time. Officer Felkins drew his gun and proceeded toward that area to look for Archuleta. He eventually found him hiding under some tables in the dining area.

With his weapon still drawn, Officer Fel-kins asked the suspect why he had been running. Archuleta replied that there were warrants outstanding for his arrest. After hearing that response, Officer Felkins detained Archuleta, and with the help of another officer pulled him out from under the tables. When Archuleta stood, the officer observed two baggies of a substance that he suspected to be heroin on the floor where Archuleta had been lying. The police subsequently searched the dining area and found a handgun under a table near where they apprehended Archuleta.

After Officer Felkins seated Archuleta in a patrol car, he told Archuleta that he was a fast runner and commented to him that he should have been an athlete instead of a drug dealer. Archuleta responded with an apparent reference to the baggies, saying that he was just holding them for a friend.

Archuleta was charged with possession of a controlled substance and possession with intent to distribute a controlled substance in violation of sections 18 — 18—405(l)(a) and 2(a)(1), 6 C.R.S. (1998), and as a .special offender under section 18-18^407(l)(f), 6 C.R.S. (1998). Archuleta pled not guilty and filed a motion to suppress all of the evidence against him, alleging that it was the product of an illegal seizure in violation of the Colorado and United States Constitutions. The trial court granted the motion to suppress, and the matter -now comes before us as a result of the prosecution’s interlocutory appeal pursuant to C.A.R. 4.1.

We conclude that Archuleta’s comment regarding his outstanding warrants was evidence produced in the course of a valid investigatory stop. That comment then provided Officer Felkins with a sufficient reason to detain Archuleta. The police subsequently seized the bags of heroin and the gun as a result of Archuleta’s lawful detention.

II.

The Fourth Amendment to the United States Constitution and Article II, Section 7, of the Colorado Constitution protect against unreasonable searches and seizures. See U.S. Const, amend. IY; Colo. Const, art. II, § 7; see also, e.g., People v. Salazar, 964 P.2d 502, 504 (Colo.1998).' The determination of whether a search or seizure is reasonable depends upon the reason for and the extent of the intrusion. See, e.g., Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In determining whether a particular encounter between the police and a citizen violates the Fourth Amendment, it is helpful to classify the incident as one of three general types of police-citizen contact: consensual encounters; arrests or full-scale searches; or intermediate forms of intrusion such as investigatory stops or limited searches. See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Salazar, 964 P.2d at 506; People v. Johnson, 865 P.2d 836, 842 (Colo.1994); People v. Tate, 657 P.2d 955, 958 (Colo.1983). Consensual encounters are those in which the police approach a person to ask questions or request identification. They do not trigger Fourth Amendment 'scrutiny “so long as a reasonable person would feel free ‘to disregard the police and go about his business.’ ” Bostick, 501 U.S. at 434, 111 S.Ct. 2382 (quoting California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)); Johnson, 865 P.2d at 841. Arrests and full-scale searches, on the other hand, are subject to the Fourth Amendment’s reasonableness requirement. In order to be constitutionally sound, they must be based on warrants issued upon probable cause or on an established exception to the warrant requirement. See, e.g., Salazar, 964 P.2d at 504.

In the middle of the spectrum between consensual encounters and arrests based upon probable cause exist “intermediate forms of police response” that “may be employed under narrowly defined circumstances upon less than probable cause.” Tate, 657 P.2d at 958. Police may undertake intermediate intrusions such as investigatory stops² consistent with the Fourth Amendment as long as three conditions are satisfied: (1) there is a specific and articulable basis in fact for suspecting that criminal activity has taken place, is in progress, or is about to occur (that is, “reasonable suspicion”); (2) the purpose of the' intrusion is reasonable; and (3) the scope and character of the intrusion are reasonably related to its purpose. See Salazar, 964 P.2d at 505.

At the motions hearing before the .trial court, Archuleta contended that Officer Fel-kins’s pursuit of him constituted an investigatory stop, that it was conducted in violation of the Fourth Amendment, and therefore that the trial court should suppress any evidence discovered as a result of that chase. First, Archuleta argued that at the time the foot chase began, Officer Felkins did not have an articulable suspicion of criminal activity.³ Moreover, Archuleta asserted that his subsequent act of running away to avoid contact with the police officer “[did] not constitute the type of specific and articulable fact that is constitutionally sufficient to justify a stop.” People v. Thomas, 660 P.2d 1272, 1275 (Colo.1983). Thus, Archuleta continued, Officer Felkins’s non-consensual contact with Archuleta at the end of the chase was not supported by facts sufficient to satisfy the requirements of the Fourth Amendment. Accordingly, Archuleta’s statement regarding his outstanding warrants, his resulting arrest, the discovery of the drugs and the gun, and his subsequent incriminating statement were all inadmissible fruits of the improper contact. The trial court agreed and granted Archuleta’s motion to suppress the evidence. We now reverse.

III.

In order to reach a conclusion regarding the admissibility of the evidence, we must first determine the nature of the contact between Officer Felkins and Archuleta. We then apply the test applicable to that type of contact to the facts in this case in order to analyze whether Officer Felkins’s actions were justifiable and appropriate under the Fourth Amendment.

Here, when Officer Felkins drew his weapon and approached Archuleta in the dining area, his actions constituted a seizure for purposes of the Fourth Amendment. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.) (stating that “the display of a weapon by an officer” was an example of a seizure). We now conclude that this seizure was an investigatory stop rather than an arrest, and that under the totality of the circumstances, this investigatory stop was a reasonable seizure that did not violate Archuleta’s rights under the Fourth Amendment.

A.

The United States Supreme Court has never clearly differentiated between the characterization of seizures as arrests as opposed to investigatory stops. However, as the Seventh Circuit has noted, the trend developing since Terry has been to include within the rubric of investigatory stops in some circumstances “the use of handcuffs, the placing of suspects in police cruisers, the drawing of weapons and other measures of force more traditionally associated with arrest than with investigatory detention.” United States v. Tilmon, 19 F.3d 1221, 1224-25 (7th Cir.1994), quoted in 4 Wayne R. LaFave, Search and Seizure § 9.2(d) at 36 (3d ed.1996).

A law enforcement officer conducts an investigatory stop because he suspects an individual of criminal activity and deems it necessary to take action in order protect himself and those around him. See Terry, 392 U.S. at 30, 88 S.Ct. 1868. It is logical, then, to conclude that in the course of conducting an investigatory stop, an officer may take reasonable measures necessary to ensure his own safety. See United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (noting that in the course of an investigatory stop, police officers “were authorized to take such steps as were reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop”); Tilmon, 19 F.3d at 1225 (“When effecting a Terry stop, which is always a stop made at ‘close range,’ police officers must make a quick decision about how to protect themselves and others from possible danger.”). In this case, Officer Fel-kins testified that he drew his gun when he entered the dining area. He believed Ar-chuleta was probably hiding in that area. The area was deserted. The officer could reasonably have harbored concerns for his safety under the circumstances. It was not unreasonable for Officer Felkins to have drawn his gun in preparing to confront Ar-chuleta and any unknown circumstances that had enticed Archuleta to return to the very bar from whose alley he fled. Officer Fel-kins’s action in drawing his weapon did not constitute an arrest, but was merely a justifiable measure of precaution ensuring his protection in the course of conducting an investigatory stop. See United States v. Diaz-Lizaraza, 981 F.2d 1216, 1221 (11th Cir.1993) (finding that an investigatory stop of suspected drug dealers did not become an arrest merely because agents drew their guns, and reasoning that drug dealing is known to be extremely violent and the agents acted reasonably to protect themselves); United States v. Sinclair, 983 F.2d 598, 602-03 (4th Cir.1993) (concluding that police officers could properly draw guns incident to the investigatory stop of suspected drug carriers); 4 LaFave, § 9.2(d) at 37 (“[I]t cannot be said that whenever police draw weapons the resulting seizure must be deemed an arrest rather than a stop.... The courts have rather consistently upheld such police conduct when the circumstances ... indicated that it was a reasonable precaution for the protection and safety of the investigating officers.”).

B.

Having concluded that the encounter constituted an investigatory stop, we must now determine whether the stop was justifiable and appropriately conducted. We begin with whether the officer had a specific and articulable basis in fact for suspecting that criminal activity had taken place, was in progress, or was about to occur at the moment when he approached Archuleta inside the El Charrito. In making this determination, we look to the totality of the circumstances. See People v. Canton, 951 P.2d 907, 910 (Colo.1998).

In People v. Thomas, 660 P.2d 1272 (Colo.1983), we held that in a chase case, reasonable suspicion had to be evaluated at the point at which a suspect begins to run. If the officer did not then have a reasonable suspicion of criminal conduct, the chase was unwarranted. Accordingly, we concluded that “[f]acts uncovered after a chase begins do not enter into the constitutional equation for reasonable suspicion.”⁴ Because the police in that case did not have a reasonable suspicion of criminal activity before they began to chase the defendant, the evidence of drug use or distribution that the defendant discarded during the course of the pursuit was the product of unlawful police activity, and therefore was not admissible against the defendant. See id. at 1275.

Since we issued that opinion, however, the United States Supreme Court has further developed Fourth Amendment jurisprudence in a manner inconsistent with that position.

In California v. Hodari D., the Court held that a police officer’s chase of a suspect does not trigger the protections of the Fourth Amendment because it is not a seizure.⁵ Applying that conclusion to the facts of Hodari D., the Court found that evidence discarded by a suspect as he was running from the police should not have been suppressed as the fruit of an unlawful seizure because no seizure of the suspect had taken place. See Hodari D., 499 U.S. at 629, 111 S.Ct. 1547.

The Court’s conclusion in Hodari D. conflicts with part of our decision in Thomas. We therefore overrule Thomas to the extent that it is inconsistent with the Supreme Court’s position in Hodari D.6

The application of Hodari D. to this case leads us to reject the trial court’s conclusion that all evidence discovered subsequent to the police chase was automatically inadmissible merely because Officer Felkins did not have a reasonable suspicion of criminal activity when he began the pursuit. Officer Felkins did not need to have reasonable suspicion in order to chase Archuleta because that pursuit was not a seizure and did not trigger the Fourth Amendment.

Hence, we again turn our attention to the moment in the dining area of the El Charrito when the officer approached Archuleta. Under a totality of the circumstances analysis, we must determine whether the officer had a reasonable and articulable suspicion that Ar-chuleta had been or was involved in criminal activity. We conclude that he did.

The facts Officer Felkins knew at the moment of the stop were: (1) the El Charrito was a known drug trafficking location; (2) the defendant and two other individuals were huddled together in an alley in the dark of night; (3) when the officer approached, Ar-chuleta fled; (4) Archuleta continued his flight with deliberate evasive action; (5) he returned to the location from which he fled initially; (6) he knocked over a bicyclist at the entryway of the El Charrito; and (7) he hid himself in a deserted section of the restaurant.

We have previously held, and we here reiterate, that the fact that a suspect flees from an officer, standing alone, does not support a reasonable suspicion of criminal activity. See Thomas, 660 P.2d at 1276. Similarly, the fact that an area is known for drug trafficking, standing alone, does not comprise reasonable suspicion. See People v. Padgett, 932 P.2d 810, 815 (Colo.1997) (concluding that the fact that criminal mischief and car break-ins had recently occurred in the neighborhood, though none had been reported that morning or the previous evening, was insufficient to form the basis for reasonable suspicion that two men walking along the street at 1:50 a.m. — one of whom accelerated his pace as police approached — had been involved in criminal activity); People v. Greer, 860 P.2d 528, 531 (Colo.1993) (holding that an investigatory stop cannot be based solely on the reputation of past criminal activity in an area).

However, the notion that such circumstances individually cannot constitute reasonable suspicion does not prevent both of them from combining with other developments to form a sufficient basis for reasonable suspicion. We have held, for example, that a history of drug transactions in a locality can provide one element of support for an investigatory stop. See People v. Ratcliff, 778 P.2d 1371, 1379 (Colo.1989) (holding that the combination of an observed exchange between two individuals in a high drug-trafficking area together with the officer’s prior knowledge of one of the individuals as a user and supplier of drugs sufficed to comprise reasonable suspicion).

Additionally, continued evasive action that escalates beyond a chase can form one element of a basis for reasonable suspicion. See People v. Martineau, 185 Colo. 194, 198, 523 P.2d 126, 127-28 (1974) (determining that the police had reasonable suspicion to stop a defendant who fled from the officer’s spotlight at 4:00 a.m. and then tried to hide himself prone at the top of some bleachers)⁷; 4 LaFave, § 9.4(f) at 181 (“[S]ueh stops have been upheld when the individual made repeated efforts to avoid police contact, when he engaged in a combination of several different possibly furtive actions, and when the person engaged in a rather extreme means of avoidance such as high-speed flight.”) (footnotes omitted).

Furthermore, the fact that Archule-ta knocked over a bicyclist at the entryway to the El Charrito appropriately figures into the calculus for purposes of assessing reasonable suspicion. Assault in the third degree, a misdemeanor, occurs if a person “knowingly or recklessly causes bodily injury to another person or with criminal negligence ... causes bodily injury to another person by means of a deadly weapon.” § 18-3-204, 6 C.R.S. (1998). “ ‘Bodily injury’ means physical pain, illness, or any impairment of physical or mental condition.” § 18 — 1—901(c), 6 C.R.S. (1998). Thus, Archuleta may have committed a crime by knocking over the bicyclist. A crime committed while a suspect is fleeing may certainly buttress an officer’s suspicions that criminal activity is afoot and may support further investigation. Cf. People v. Cappelli, 927 P.2d 832, 834-35 (Colo.1996) (concluding that if, in the course of fleeing from the police, a suspect commits other crimes, those crimes can be taken into account when assessing the propriety of the officer’s conduct upon apprehension of the suspect).

Hence, based upon the totality of the circumstances, the officer had a reasonable and articulable suspicion of criminal activity sufficient to justify the investigatory stop of Ar-chuleta.

Having concluded that the officer did have reasonable suspicion, we now turn to consideration of the other two criteria that must be met in order for an investigatory stop to be valid: whether the purpose of the intrusion is reasonable and whether the scope and character of the stop reasonably relate to its purpose. See Salazar, 964 P.2d at 505. The purpose of the stop, to contact Archuleta in order to question his activities at the El Charrito and the reason for his flight, was a reasonable law enforcement objective. See Terry, 392 U.S. at 22, 88 S.Ct. 1868 (noting that crime prevention and detection is a legitimate investigative function). In carrying out this purpose, Officer Felkins conducted himself in a manner that allowed him to protect himself until he was able to confirm or dispel his suspicion that Archuleta was involved in criminal activity. When Officer Felkins asked Archuleta a single question in the course of the investigatory stop, specifically, “why are you running?”, Archuleta himself provided the answer that gave the officer a further basis to continue the detention, and ultimately, to arrest Archuleta. Thus, the duration of the actual investigatory stop was brief, and its scope was limited to the legitimate purpose of questioning Ar-chuleta’s actions.

Upon hearing Archuleta’s statement regarding his outstanding arrest warrants, Officer Felkins acted properly in detaining Archuleta. The gun and the drugs found after the police detained Archuleta were admissible as evidence produced during a search incident to a lawful detention.⁸

IV.

In sum, we conclude that Officer Felkins’s contact with Archuleta in the dining area of the El Charrito was an investigatory stop, which was permissible because at that point, Officer Felkins was aware of facts supporting a reasonable suspicion that Archuleta was engaged in criminal activity. During the course of this reasonable investigatory stop, Archuleta informed Officer Felkins of the outstanding warrants for his arrest, which provided the officer with a basis to detain Archuleta and ultimately arrest him. The subsequent discovery of the heroin and the gun was incident to that lawful detention. Because Officer Felkins acted in conformity with the requirements of the Fourth Amendment, Archuleta’s motion to suppress should have been denied. We reverse the trial court’s suppression order and remand this case for further proceedings.

Justice MARTINEZ dissents.

1 . The trial court agreed with the officer’s characterization of the area as a common forum for drug transactions. The court took judicial notice that the 2100 block of Larimer Street “is a notorious location for drug dealing."

2 . An investigatory stop is an encounter in which an officer conducts a limited search in order to question a suspect or pat him down for weapons. The United States Supreme Court first recognized that such a seizure can be based on less than probable cause in Terry, 392 U.S. at 30, 88 S.Ct. 1868. In Colorado, such stops are sometimes referred to as Stone stops pursuant to Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971).

3 . Officer Felkins testified that he formed the im- . pression that Archuleta and the other two men were involved in a drug deal because: (1) they were in an area known for drug trafficking; and (2) they were huddled together. The People conceded that those facts did not rise to the level of a reasonably articulable suspicion to stop Archule-ta at the time the chase began. We therefore do not address the issue.

4 . Thomas, 660 P.2d at 1275. In Thomas, two police officers in an unmarked patrol car observed the defendant standing in a parking lot. See id. at 1273. After the defendant made eye contact with the officers, he ran away from them into a nearby building. The officers gave chase, and as they followed the defendant into the building, one officer observed the defendant discard something. The officer then drew his gun and ordered the defendant to stop. When that officer discovered that the discarded item was a bunch of balloons containing cocaine, the other officer took the defendant into custody. See id. at 1274.

5 . California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), In concluding that a suspect was not "seized” just because police officers were chasing him, the Court noted that the seizure of a person "requires either physical force ... or, where that is absent, submission to the assertion of authority.” Id. The police in that case had not used physical force against the suspect, and although they made an assertion of authority by pursuing him, the suspect did not cease his attempt to flee. Thus, the suspect had not submitted to law enforcement’s assertion of authority, and therefore he had not been "seized” within the meaning of the Fourth Amendment.

6 . We applied the holding of Hodari D. for the first time in People v. T.H., 892 P.2d 301, 303 (Colo.1995).

7 . We noted in Martineau that, once they apprehended the defendant, the police recognized him as having been present at a crime scene earlier that' evening. However, they did not recognize him until the stop occurred. See Martineau, 185 Colo, at 198, 523 P.2d at 128.

8 . Neither party has raised and we do not here address the question of whether Archuleta’s subsequent incriminating statement regarding the heroin baggies, made prior to the advisement of Miranda warnings, was admissible.