Opinion
No. 75-697
Decided November 26, 1976. Rehearing denied December 23, 1976. Certiorari granted March 21, 1977.
Convicted by a jury of second degree burglary and felony theft, defendants appealed.
Reversed
1. CRIMINAL LAW — Search and Seizure — No Reasonable Suspicion — Criminal Activity — Questioning at Curbside — Police Officers — No Right — Enter Private Driveway. When, in early morning hours, police officers followed two men to house and thereafter questioned them at the curbside, the officers had no reasonable suspicion that any criminal activity had occurred and none was occurring in "plain view"; therefore, the police officers had no right to enter the private driveway of the house, and the evidence seized as a result thereof should have been suppressed.
2. Search and Seizure — Questioning at Curbside — Reasonable Expectation of Privacy — Car in Carport — Behind House — Constitutionally Protected Area. Under circumstances in which police officers had no reasonable suspicion of criminal activity occurring relative to two men which they were questioning at curbside of house, the men had a reasonable expectation of privacy as to their car parked under the carport behind the house such that it was a constitutionally protected area where warrantless intrusions are forbidden.
3. Arrest — Freedom of Movement Restrained — Police — However Characterized — Must be in Accord — Established Law. When an individual is restrained in his freedom of movement by the police, however the restraint is characterized, whether as an arrest, an accosting, or an investigatory stop, it constitutes detention and must be carried out in accordance with established principles of law.
4. Confessions — Self-Incrimination — Based on Illegal Search — Defendants' Subsequent Statements — Should Have Been Suppressed. Under the circumstances presented on motion to suppress certain statements of defendants, absent an illegal search that they had conducted, police officers who detained defendants had neither probable cause to arrest them nor reasonable suspicion that they had engaged in criminal activity; consequently, the defendants' detention by the officers was illegal and the defendants' statements made very soon after their illegal detention should have been suppressed.
5. Confessions — Self-Incrimination — Defendants' Statements — Shortly After — Illegal Detention — Miranda Warnings — Not Purge Taint — Should Have Been Suppressed. Since defendants' statements were made very soon after their illegal detention by police, the giving of the Miranda warnings after the illegal detention and before the statements, did not purge them of the taint of that detention, and thus the trial court should have suppressed those statements.
Appeal from the District Court of Otero County, Honorable Lawrence Thulemeyer, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, David K. Rees, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Dorian E. Welch, Deputy State Public Defender, for defendants-appellants.
Defendants, Ernesto Apodaca and Frank Perez, appeal their convictions by a jury of second degree burglary and felony theft. We reverse.
At approximately 3:00 a.m. on April 11, 1975, Officer Noyes was in his sheriff's car patrolling in La Junta, Colorado. He saw a car exit from a private alley and, after observing the vehicle in his rearview mirror, made a U-turn and followed it. This action was prompted by the hour of night and what he termed as an "evasive move" made by the driver of the vehicle upon leaving the alley.
Noyes followed the vehicle to 402 Smithland where it pulled into a driveway in the back of the house and parked under a carport canopy and two men got out of the car. Noyes then returned to the alley and made an inspection to see if any place had been broken into. He was joined by Officer Whatley who also was in a police vehicle. Both officers' inspections were negative.
The two officers proceeded to 402 Smithland, and stopped on the street side in front of the house. They saw one man near the back door of the house and the other in front of the car. The two men were the defendants, and they came to the police cars and Noyes asked for their identification. The pair complied. Noyes asked why they had exited from the alley and was told by Perez, with Apodaca agreeing, that they were trying to elude some girls who were in another vehicle chasing them.
Noyes left the pair in Whatley's custody and proceeded to 25 feet back of the house and shined his flashlight into the parked car. He observed a lever action rifle and some new clothing in two large plastic bags. At the suppression hearing Noyes stated that some of the clothing were levis and he was aware of a previous theft of some levi clothing a day earlier.
Noyes returned to the street and advised the defendants of their rights. The pair indicated their understanding and agreed to answer questions. He asked both men to explain the items in their cars. Perez stated that they saw some other persons "ripping off" a place and placing items in a trash container in the alley. When the persons left he and Apodaca picked them up.
The defendants were then arrested for suspicion of burglary, and Noyes and Sgt. Morris, who had arrived on the scene, went back to the defendant's car. Morris discovered a color television set in front of the car. The set was new, and still had Montgomery Ward tags on it, including a price tag. Sgt. Morris then radioed another car to check the alley in which the defendants had been seen earlier. He received a report that the Montgomery Ward store had, in fact, been broken into. The suspects were then rearrested for burglary and their car was searched at the scene.
The defendants filed a motion to suppress statements and evidence upon the grounds that their statements and the original search of the car were the product of an illegal detention and search in derogation of their Fourth Amendment rights. After an evidentiary hearing, the trial court concluded that the officers had probable cause for both the detention and search and denied defendants' motion. The court stated that "an officer of the law has the right to enter a private driveway when he has reasonable cause for the purpose of shining a flashlight in the automobile to observe its contents."
I. Suppression of Evidence
[1] Even if an officer having a reasonable suspicion that criminal activity is occurring in "plain view" may enter a private driveway to investigate, People v. McGahey, 179 Colo. 401, 500 P.2d 977, that right vanishes absent such reasonable suspicion. In the present case the officers had checked the alley from which the police saw the car emerge and found nothing amiss. One of the officers testified that the car itself blocked the view of the television set and it was not in plain view from the officers' position in the street. The police could not even contend that defendants' violation of the traffic laws gave them the right to search the car. People v. McPherson, 191 Colo. 81, 550 P.2d 311. Even up to the time that the initial search of the car was made they had no indication that any crime had been committed by the defendants. See People v. Mangum, 189 Colo. 246, 539 P.2d 120. Hence, the officers had no right to enter the defendants' driveway, see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, and the evidence seized as a result thereof should have been suppressed as the fruit of an illegal search. People v. Boorem, 184 Colo. 233, 519 P.2d 939.
[2] Furthermore, as to the investigation of the car, under the circumstances of this case, we hold that the defendants had a reasonable expectation of privacy in the car parked under the carport behind the house. As such, it was a constitutionally protected area where warrantless intrusions are forbidden under the federal and state constitutions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576.
II. Suppression of Statements
Officer Noyes testified that during his initial search of the car Officer Whatley remained with, and "had control of," the defendants. Following the search, Officer Noyes radioed Sgt. Morris to "assist" at the scene, and requested that other officers be dispatched to recheck the alley. Thereafter, the defendants were advised of their Miranda rights.
[3] It is clear that, as of the time Noyes left the defendants with Whatley, the defendants were the focus of a criminal investigation and were suspected of criminal activity. Their freedom of movement was restricted, and it is apparent that they were detained and were not free to leave had they so desired. When an individual is restrained, however the restraint is characterized, whether as an arrest, an accosting, or an investigatory stop, it constitutes detention and must be carried out in accordance with the principles of law previously established. See People v. Stevens, 183 Colo. 399, 517 P.2d 1336; Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63; People v. Ussery, 24 Ill. App. 3d 864, 321 N.E.2d 718 (concurring opinion).
[4,5] Absent the illegal search, the officers had neither probable cause to arrest the defendants, see People v. Hoinville, 191 Colo. 357, 553 P.2d 777; § 16-3-102, C.R.S. 1973, nor reasonable suspicion that they had engaged in criminal activity. People v. McPherson, supra. At most, the officers had a vague suspicion of illegal conduct, which was insufficient to warrant the detention of defendants, Gallegos v. People, 157 Colo. 173, 401 P.2d 613; People v. McPherson, supra, and which would not justify the issuance of an arrest warrant. See People v. Moreno, 176 Colo. 488, 491 P.2d 575. Accordingly, since the defendants' statements were made very soon after the illegal detention, the giving of the Miranda warnings after the illegal detention and before the statements, did not purge them of the taint of that detention, and the trial court should have suppressed the statements. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 422; People v. Corbett, 190 Colo. 388, 547 P.2d 1264.
The illegality of the detention would also serve as a separate basis for finding the evidence seized thereafter to be inadmissible under the "fruit of the poisonous tree" doctrine. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; People v. Thompson, 185 Colo. 208, 523 P.2d 128.
Judgments reversed and cause remanded with directions that the defendants be granted a new trial and that the statements of defendants and evidence seized be suppressed.
JUDGE RULAND concurs.
JUDGE COYTE dissents.