Opinion
No. 06SA268.
January 8, 2007.
Appeal from the Adams County District Court, C. Scott Crabtree, J.
Don Quick, District Attorney, Seventeenth Judicial District, Michael J. Milne, Senior Deputy District Attorney, Rhoda T. Hafiz, Deputy District Attorney, Brighton, Colorado, Attorneys for Plaintiff-Appellant.
Douglas K. Wilson, Colorado State Public Defender, Stefanie Gaffigan, Deputy State Public Defender, Brighton, Colorado, Attorneys for Defendant-Appellee.
In this interlocutory appeal taken pursuant to C.A.R. 4.1, we review a suppression order from the Adams County District Court. We find that the trial court erroneously suppressed cocaine the defendant allegedly disposed of prior to being arrested, and we therefore reverse the order suppressing the cocaine.
I. Facts and Procedural History
The defendant, Jerome McClain, has been charged with Possession of a Controlled Substance — Schedule II — More Than One Gram, a class four felony; Possession of a Controlled Substance — Schedule II — More Than One Gram — Second Offense, a class two felony; and Possession of Marihuana — One Ounce or Less, a class two petty offense.
§§ 1818405(1), (2)(a)(I)(A), C.R.S. (2006).
§§ 1818405(1), (2)(a)(I)(B), C.R.S. (2006).
§§ 1818406(1), C.R.S. (2006).
The facts of this case, as found by the trial court, are as follows. At approximately 2:10 p.m. on February 6, 2006, two police officers from the Aurora Police Department were traveling eastbound in their vehicle on Colfax Avenue, in an area the officers considered to be a "high-drug area," when they noticed a group of three black males walking together on the sidewalk. The police officers returned westbound to the same area approximately twenty minutes later, at 2:30 p.m., and noticed one of the same males walking along the sidewalk, this time with McClain. The officers then pulled into a parking lot and parked nose-to-nose with another vehicle parked in the lot. After the officers stepped out of their vehicle, they saw McClain throw something to the ground, which one of the officers identified to be a clear plastic baggy. The officers were somewhere between fifteen and thirty feet away from McClain when this happened.
The trial court found that, prior to the throwing down of the clear plastic baggy, neither of the officers saw McClain or his companion do anything the officers believed to be criminal activity. One of the officers testified at the motions hearing that the officers pulled over to speak with McClain and his companion because McClain's companion was walking in an "idle state of mind" and, in the officer's experience, "these particular people . . . basically are up to no good." Although neither officer saw the men do anything illegal, upon seeing the baggy thrown the officers told McClain to come over to them. McClain complied and one of the officers placed him in handcuffs.
While McClain was being handcuffed, the other officer approached McClain's companion. The companion ran away and the officer chased the man. Upon this happening, the officer handcuffing McClain placed McClain in the police car and drove off to assist in apprehending the companion. After apprehending the fleeing companion, the officers returned to the original location and retrieved the clear plastic baggy, which one of the officers believed contained cocaine. McClain was then taken to the Aurora Police Department. At the Police Department, McClain was asked whether he had anything-else on him; he admitted to having a small amount of marijuana hidden in his shoe.
McClain filed motions to suppress all evidence and statements, arguing that his stop and arrest were unconstitutional. After conducting a motions hearing on August 18, 2006, the trial court granted the defense motions and suppressed all evidence, statements, and observations of the police. The trial court based the suppression of the evidence, including the cocaine, on its finding that the police lacked probable cause to arrest McClain. In this interlocutory appeal, the People request that this court reverse the trial court's suppression of the cocaine, arguing that McClain was not seized at the time he abandoned the cocaine and therefore the cocaine was not the fruit of an unlawful arrest. Because we agree with the People's argument on this point, we reverse the trial court's suppression of the cocaine.
The trial court ordered the suppression of both the cocaine and the marijuana retrieved from the defendant at the police station. The People's appeal, however, appears to only contest the suppression of the cocaine. In its Notice of Interlocutory Appeal, the People proposed the following two issues:
(1) Did the trial court erroneously apply the exclusionary rule in granting the defendant's motion to suppress the suspected controlled substances even though the defendant had discarded the suspected controlled substances before he was seized within the meaning of the Fourth Amendment.
(2) Was the trial court's decision to suppress the government's evidence, contrary to the applicable case law and the evidence presented at the suppression hearing.
Only the cocaine was "discarded," and the briefing of the parties focused exclusively on the cocaine. We do not believe that the People have appealed the suppression of the marijuana, and consequently we address only whether the trial court correctly suppressed the cocaine.
II. Analysis
In reviewing a suppression order, this court defers to the trial court's findings of historical fact and will not disturb those findings if they are supported by competent evidence in the record. Outlaw v. People, 17 P.3d 150, 155 (Colo. 2001); People v. D.F., 933 P.2d 9, 14 (Colo. 1997). We will, however, correct a conclusion of law by the trial court that is "inconsistent with or unsupported by evidentiary findings," as well as the trial court's application of an erroneous legal standard. People v. Quezada, 731 P.2d 730, 732-33 (Colo. 1987).
Both the United States and the Colorado Constitutions protect citizens against unreasonable searches and seizures. People v. Archuleta, 980 P.2d 509, 512 (Colo. 1999). Seizure of a person requires "either physical force . . . or, where that is absent, submission to the assertion of authority." California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). A necessary condition for a seizure effectuated through a show of authority is that "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. at 628, 111 S.Ct. 1547 (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). An arrest is the quintessential seizure of a person and must be supported by probable cause. People v. Trujillo, 773 P.2d 1086, 1089 (Colo. 1989). An investigatory stop also amounts to a seizure of the person but can be justified on less than probable cause. Outlaw, 17 P.3d at 156. An investigatory stop survives constitutional scrutiny if three conditions are met: (1) there is an articulable and specific basis in fact for suspecting that criminal activity has occurred, is taking place, or is about to occur; (2) the purpose of the intrusion is reasonable; and (3) the scope and character of the intrusion is reasonably related to its purpose. Trujillo, 773 P.2d at 1089.
In this case, the trial court found that the police seized McClain when they handcuffed and arrested him. In issuing its order, the trial court stated:
[B]efore approaching and asking any questions or simply asking the defendant to come over and stand by and going over and retrieving the baggy in this case, the defendant is handcuffed. . . . And he is arrested, I find at that point. He is seized, he is no longer free to go. . . .
. . . [The officer] said, "I saw [defendant] throwing something to the ground, I didn't think [defendant] was supposed to have it," so basically [the officer] cuffed [defendant].
I'm going to find that [defendant] was seized at that time. . . .
(Emphasis added). The trial court found that the police lacked sufficient probable cause to arrest McClain. As a result of the unconstitutional arrest, the trial court suppressed all of the evidence obtained by the police, including the clear plastic baggy containing cocaine that McClain had discarded prior to being arrested.
The record amply supports the trial court's conclusion that McClain was seized when he was handcuffed and we do not disturb that holding. The police officers had no physical contact with McClain prior to his arrest. Therefore, McClain could have been seized prior to his arrest only if he had submitted to a show of authority by the officers. Hodari D., 499 U.S. at 626, 111 S.Ct. 1547 (seizure of a person occurs only when there is physical force or submission to an assertion of authority). Although the trial court found that McClain submitted to the officers' request that he come over to them, the trial court also found that McClain discarded the clear plastic baggy before the officers called him over. Prior to McClain discarding the baggy, the officers did not have contact with either McClain or his companion. McClain was thus not "seized" for Fourth Amendment purposes prior to his arrest.
For the purpose of this limited appeal, we assume, without deciding, that the officers lacked probable cause to arrest McClain and therefore the arrest was unconstitutional. The normal remedy for an unconstitutional seizure is to suppress all evidence obtained as a direct result of the illegal seizure. Trujillo, 773 P.2d at 1090. The cocaine in this case was not the fruit of an illegal seizure, however, because McClain dropped the cocaine prior to being seized. The United States Supreme Court made this rule clear in California v. Hodari D.:
[A]ssuming that [the police's] pursuit in the present case constituted a "show of authority" enjoining [the defendant] to halt, since [the defendant] did not comply with that injunction he was not seized until he was tackled. The cocaine abandoned while he was running was in this case not the fruit of a seizure, and his motion to exclude evidence of it was properly denied.
499 U.S. at 629, 111 S.Ct. 1547 (emphasis added).
In Colorado, we have long recognized that evidence which is abandoned prior to a seizure is not the fruit of that seizure. Johnson v. People, 171 Colo. 150, 152, 465 P.2d 128, 129 (1970) ("We hold that this is not a case of unlawful search and seizure. In fact there was no search and seizure, as such; rather this is a situation where the defendant abandoned his property before any search and seizure ever materialized."); People v. T.H., 892 P.2d 301, 303 (Colo. 1995) ("[T]he cocaine was abandoned while T.H. was fleeing and before T.H. was stopped or arrested. Therefore, the cocaine was not the fruit of a seizure and was lawfully recovered by the police."); People v. Evans, 886 P.2d 288, 290 (Colo.App. 1994) ("In sum, the evidence in question was abandoned before any seizure occurred, and it was therefore lawfully recovered by the police."). The trial court therefore committed error in suppressing the cocaine that was abandoned prior to McClain's seizure.
McClain urges this court to find that the police officers' actions — driving by him and his companion, parking in a lot near where he and his companion were walking, and simultaneously exiting the police vehicle — amounted to a show of authority by the police officers sufficient to seize him. McClain argues that this seizure was not supported by a reasonable suspicion of criminal activity and therefore the cocaine should be suppressed. McClain relies on our decision in Outlaw v. People to support his position. We find McClain's argument unpersuasive.
McClain further argues that the officers' decision to pull their patrol car over to speak with him and his companion was made because McClain and his companion are African-American. Selective enforcement of the law based on racial considerations is, of course, constitutionally unacceptable under the Equal Protection Clause. Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Fourth Amendment analysis, however, does not take into account the subjective intentions of law enforcement, even if those subjective intentions are discriminatory. Id. An objective analysis of this case leads to the conclusion that McClain was not "seized" for Fourth Amendment purposes when he discarded the cocaine because, at that point in time, he had neither submitted to a show of authority by the police officers nor had the police officers used physical force. This factual determination disposes of the case.
In Outlaw, this court had to decide whether Outlaw had been seized through an investigatory stop, or whether his interaction with the police amounted to nothing more than a consensual encounter that does not raise constitutional concerns. 17 P.3d at 155-56. We found that Outlaw was in fact seized. Id. at 156. Outlaw was walking along the sidewalk with a group of other people when police officers drove their patrol car onto the side-walk and followed the group at close range for twenty to thirty feet. Id. After pulling the patrol car off of the sidewalk, the police continued to follow alongside the group while driving in the wrong lane of traffic. Id. We found that this conduct with the patrol car amounted to a show of authority. Id.
Importantly, however, Outlaw was not actually seized until the police officers called him over to the patrol car and he obeyed that order. Outlaw, 17 P.3d at 156. It was not until after Outlaw was seized that the police noticed plastic protruding from his hand, later discovered to contain cocaine, that he then dropped on the ground. Id. at 154 ("As Outlaw approached the [patrol] car on the driver's side, his left hand remained closed. The officer saw what appeared to be a small piece of clear plastic protruding from that hand. Outlaw then made a sweeping motion with his closed hand, dropping it out of view for a moment."); see also id. at 157 ("[T]he officers did not see anything in Outlaw's hand until after the seizure had taken place. . . .").
Based on the trial court's factual findings in this case, we are not convinced that the conduct of the police officers here rose to the same level as that of the officers in Outlaw. Even if the officers here made a show of authority, the trial court found that McClain dropped the clear plastic baggy before the officers called him over and seized him. Unlike Outlaw, where the evidence was discovered only after the defendant was seized, here the officers saw McClain dispose of the cocaine prior to seizing him. This factual finding is critical because, as explained above, evidence abandoned prior to a seizure is not the fruit of that seizure; therefore, even if the seizure is unconstitutional, the abandoned evidence should not be suppressed.
III. Conclusion
McClain dropped the cocaine at issue prior to being seized. Consequently, the cocaine was not the fruit of the seizure and, even assuming the trial court was correct in holding that McClain's arrest was unconstitutional, should not have been suppressed. We therefore reverse the trial court's suppression of the cocaine and remand this case for proceedings consistent with this opinion.
Justice MARTINEZ dissents and Justice BENDER joins in the dissent.