People v. King

16 P.3d 807, 2001 WL 32798
CourtSupreme Court of Colorado
DecidedJanuary 16, 2001
Docket00SA207, 00SA222
StatusPublished
Cited by256 cases

This text of 16 P.3d 807 (People v. King) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. King, 16 P.3d 807, 2001 WL 32798 (Colo. 2001).

Opinions

JUSTICE BENDER

delivered the opinion of the court.

In these interlocutory appeals the People challenge suppression orders of the Dolores County District Court. That court held that the encounter between the defendants and the police was not an investigatory stop but rather constituted an arrest and search not supported by the existence of probable cause to arrest. Thus, the trial court suppressed evidence seized incident to that arrest.

We hold that probable cause to arrest exists when, at the time of arrest, the objective cireumstances available to a reasonably cautious officer justify the belief that (1) a crime has been or is being committed (2) by the person arrested. Because the police in this case lacked probable cause to believe that the defendants, whom they arrested, had committed or were committing the crime of cultivation of marijuana, we hold that the police acted without probable cause.

[810]*810We also hold that, when officers use force typically associated with an arrest-such as the drawing of weapons, physical restraint, and the use of handeuffs-the prosecution may not characterize the encounter as an investigatory stop unless specific facts or circumstances exist that render the use of such force a reasonable precaution for the protection and safety of the officers. Because no such facts or cireumstances exist here, we agree with the trial court's conclusion that the encounter was an arrest unsupported by probable cause and that the evidence seized incident to that arrest must be suppressed. Hence, we affirm.

I. FACTS AND PROCEEDINGS BELOW

Based on the trial court's findings and the uncontested testimony of Agents Matt Buff-ington and Brooks Bennett, who were the only witnesses who testified at the hearing, the pertinent facts are as follows.

In September 1999, a U.S. Forest Service Investigator learned from hunters that a marijuana "garden" was growing in Roche Gulch, Dolores County, Colorado. Roche Gulch is a dead end or "box" canyon. A road leads into the canyon and ends in an area where hunters or hikers can park. A trail leaves from this area. The marijuana garden was clustered around a natural spring hidden above the trail and was divided into eleven plots, containing more than 200 plants. The forest investigator relayed the hunters' information to agents of the Twenty-Second Judi-clal District Drug Task Force, who went to the site the next day. Agent Buffington took samples of the leaves from some of the plants and these samples tested positive as marijuana. Buffington testified that the agents noticed that there was fishing line around several of the plots on which hung "a green cloth that looked like it had been sprayed with some type of chemical." In the vicinity, agents also found two empty bottles of what Agent Buffington believed was "Grant's deer repel."

While placing a surveillance camera at the garden to monitor activity there, agents found a Continental Airlines luggage tag lying under some bushes between two of the marijuana plots. The luggage tag bore the name "Tim Gulick" and listed a Durango address. This address was not valid, but a Timothy Gulick was listed as living at an address in Montezuma County, Colorado. That Friday, agents went to that address, where they observed a blue Nissan pickup registered to defendant Kam King. Agent Bennett spoke to a person at that address who identified himself as Kam King. In his testimony, Agent Bennett described Mr. King as approximately six-feet tall with dishwater blond hair. None of the agents saw Mr. Gulick, but records showed him as also around six-feet tall but with longer hair, below his shoulders.

The next Monday, officers returned to Roche Gulch to retrieve the surveillance tape and to put new tape in the camera. They viewed the tape they retrieved that day. This tape showed nighttime footage of two men shining flashlights on the marijuana in the garden. Agent Buffington testified that the only distinguishing feature in the tape was that one of the men had long light hair and that he could not determine whether either of the individuals shining flashlights in the garden was King or Gulick.

That night, the agents set up live surveillance at Roche Gulch Agent Bennett donned night-vision equipment and climbed up a hillside to observe the garden and the road leading into and out of the canyon. He was in radio communication with Agent Buff-ington, who parked down the road from the Gulch. Dolores County Undersheriff Shane Schmalz was also present. The trial court found that all the officers had agreed they would arrest anyone removing marijuana. After reaching his hillside perch, Agent Bennett viewed a blue Nissan pickup on the road and identified it as the one he observed at the Gulick residence belonging to defendant King. He communicated this information to Agent Buffington.

Approximately one hour later, Agent Bennett watched as two men with flashlights, one carrying a backpack that appeared to be full, the other with long hair and a dog, walked out of the canyon. The trial court found that Agent Buffington suspected that the back[811]*811pack contained marijuana. Agent Bennett testified that, although one of the men appeared to have long hair, Bennett was not able to determine any facial features or other identifying attributes of either man through his night vision goggles. Agent Bennett was also unable to determine whether the men were carrying weapons. After the two men entered the Nissan pickup, Agent Bennett watched them drive out of the canyon. Bennett relayed this information to his fellow officers and ran down the hill to his car.

Agent Buffington and Undersheriff Schmalz followed the pickup in their police vehicles and ordered the car to pull over and stop. The two officers conducted a full felony stop: they drew their guns, ordered the men, one at a time, to exit the car, and directed them to lie face down on the ground. Agent Buffington testified that the purpose of the stop was "[tlo identify the individuals [in the car)] and to make sure we didn't have marijuana leaving the garden." He believed marijuana might be leaving the garden via the backpack and that the officers "needed to stop the vehicle for further investigation."

Agent Buffington testified that, before making the stop, he feared for his safety because the stop occurred in an isolated mountain area in which it was difficult to maintain radio contact and because he was told in training that people involved in the growing of marijuana often have weapons with them. However, he testified that no specific facts or circumstances existed or occurred indicating that these defendants would be armed or dangerous.1

By the time Agent Bennett arrived, both men were on the ground. Agent Buffington then did a protective search of the cab and camper shell of the pickup finding no other occupants while Bennett and Schmalz handcuffed the men2. The trial court found that by this point in time both men were under arrest.

The officers then put the men into the police vehicle. Agent Buffington observed that one of the men had long hair. Buffing-ton and Bennett both testified that they observed the two men had pants that were wet to the ankles and they could smell the odor of live marijuana on the men. Buffington testified that his observations of wet pants, long hair, and the odor of marijuana were all made after the felony stop. There was some ambiguity as to exactly when the officers observed the wet pants and smelled the live marijuana.

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Cite This Page — Counsel Stack

Bluebook (online)
16 P.3d 807, 2001 WL 32798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-king-colo-2001.