Opinion
No. 92SA241
Decided June 14, 1993. Rehearing Denied July 6, 1993.
Appeal from the District Court, El Paso County Honorable Steven T. Pelican, Judge
Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Roger G. Billotte, Assistant Attorney General, Appellate Section, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, David M. Furman, Deputy State Public Defender, for Defendant-Appellant.
Appellant Clayton Ellington (Ellington) appeals from a district court order denying a motion to suppress evidence, and from a judgment of conviction requiring Ellington to pay a $2,000 drug offender surcharge. We separately consider each order.
I.
Ellington contends that imposition of a surcharge pursuant to section 18-19-103, 8B C.R.S. (1992 Supp.), violates the proscriptions against ex post facto laws because the statute was not in effect when he committed offenses. We agree.
In People v. Stead, 845 P.2d 1156 (Colo. 1993), we concluded that a district court order requiring the defendant Timothy Stead to pay a surcharge pursuant to section 18-19-103 violated constitutional proscriptions against ex post facto laws. Id. at 1159. "[Timothy] Stead committed offenses on August 22, 1990." Id. The drug offender surcharge statute went into effect on July 1, 1991. § 18-19-103(1), 8B C.R.S. (1992 Supp.); see Stead, 845 P.2d at 1158 (discussing the drug offender surcharge statute). Referring to the date on which Stead's offenses occurred, we ruled that "[t]he drug offender surcharge statute was not annexed to the charged offenses on that date; accordingly, retroactive application of the statute to [Timothy] Stead makes more onerous the punishment for [Timothy] Stead's crime after its commission, in contravention of the prohibitions against ex post facto laws." Stead, 845 P.2d at 1159.
In the present case, Ellington committed offenses on September 23, 1990, approximately one year prior to the July 1, 1991, effective date of section 18-19-103. Pursuant to our opinion in Stead, imposition of a surcharge violates the proscriptions against ex post facto laws on these facts. We reverse the district court order imposing a surcharge.
Since we find that the surcharge violates the proscriptions against ex post facto laws, we do not consider due process and equal protection challenges to the surcharge statute.
II.
Ellington contends that the district court erred by denying his motion to suppress evidence, and thus his convictions should be reversed. We disagree.
"[A] police officer may stop a person for investigatory purposes under narrowly defined circumstances without having probable cause to arrest." People v. Carillo-Montes, 796 P.2d 970, 973 (Colo. 1990); see People v. Contreras, 780 P.2d 552, 555 (Colo. 1989); Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971). In such cases, "`(1) there must be an articulable and specific basis in fact for suspecting that criminal activity has taken place, is in progress, or is about to occur; (2) the purpose of the intrusion must be reasonable; and (3) the scope and character of the intrusion must be reasonably related to its purpose.'" Carillo-Montes, 796 P.2d at 973 (quoting Contreras, 780 P.2d at 555).
"In determining whether an investigatory stop violated constitutional standards, the totality of the circumstances must be considered." Contreras, 780 P.2d at 555. "The facts known to the officer at the time of the stop and any reasonable inferences drawn from the facts must be considered." Id.
In the present case, the district court held a hearing on Ellington's motion to suppress evidence of a Beretta .22 caliber pistol and a pink plastic container containing one rock of suspected crack cocaine. Officer Phillip Dancy (Officer Dancy) testified that, prior to application for a search warrant of the Night Life Disco (the Disco), the Colorado Springs Police Department received twenty-two "calls related to violent crimes, assaults, robberies and shots, calls for service that detailed shots being fired in the parking lot and numerous drug transactions" occurring at the Disco. Officer Dancy established a stationary surveillance of the Disco, and established that narcotics transactions occurred there on a nightly basis. Officer Dancy, after submitting a twenty-five page affidavit detailing both the calls received and the results of the surveillance, obtained a warrant to search the Disco, the parking lot, and specific persons, for narcotics. According to Dancy, approximately thirty to fifty officers assisted in executing the search warrant on September 23, 1990.
Officer Mark Comte (Officer Comte) testified that, while executing the warrant at approximately 3:00 a.m., he was the only officer positioned outside of the front door of the Disco. Officer Comte detained Ellington directly in front of the Disco, which was the only business open at that time. Officer Comte directed Ellington to lie down on the ground with his hands visible. Officer Comte testified that "[a]t times it appeared that [Ellington] wanted to keep lowering his hands down toward his body." When a second officer arrived, Officer Comte conducted a pat-down search for weapons, and, as he checked the right side of Ellington's jacket, he felt an object in the pocket which he retrieved and discovered to be a .22 caliber semi-automatic weapon. Officer Comte then placed Ellington under arrest for carrying a concealed weapon, and conducted a search incident to a lawful arrest. Officer Comte subsequently found a plastic container in Ellington's shirt pocket which contained several rocks of suspected crack cocaine.
After the hearing, the district court issued a written order wherein the district court found that all the officers executing the warrant were "aware not only of generalized illegal activity regularly occurring upon the premises but also of frequent and specific instances of possession and discharge of firearms by the [Disco's] patrons in the three months preceding the execution of the Warrant." The district court found that,
"[b]ecause of the detail and specificity of the information known to the police officers at the time of the execution of the warrant, particularly those pieces of information pertaining to the possession and the discharge of firearms by patrons of the [Disco], a "pat-down" of the Defendant for weapons was constitutionally permissible."
A review of the affidavit and of the suppression hearing testimony reveals that there was an articulable and specific basis in fact for suspecting that criminal activity had occurred and was in progress. The purpose of the pat-down was reasonable: Officer Comte conducted a search for weapons at a location where there had been numerous reports of discharged weapons. Further, the scope and character of the intrusion was reasonably related to its purpose of searching for weapons. Based on the foregoing, we affirm the district court's denial of the motion to suppress, and remand the case for further proceedings consistent with this opinion.
JUSTICE LOHR specially concurs, and JUSTICE KIRSHBAUM and JUSTICE SCOTT join in the special concurrence.