The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Henry L. BLAND, Defendant-Appellee.
No. 94SA63.
Supreme Court of Colorado, En Banc.
Nov. 7, 1994.
884 P.2d 312
Justice LOHR delivered the Opinion of the Court.
The prosecution brings this interlocutory appeal pursuant to C.A.R. 4.1 and section 16-12-102(2), 8A C.R.S. (1994 Supp.), to challenge an order of the Denver District Court suppressing a packet of cocaine discovered during a search of the person of the defendant, Henry L. Bland, after he had been detained for possession of one ounce or less of marihuana. We hold that although
I. Factual Background1
A security guard at a Motel 6 located in Denver, Colorado, testified that on September 25, 1993, he observed a number of people entering and leaving room 306. Suspecting possible drug trafficking, the security guard reported this activity to the police. Thereafter, members of the Denver Police Department narcotics unit went to the motel and conducted a surveillance of room 306. The officers observed the room for approximately thirty minutes and, during that time, saw people entering, staying for a short time, and then leaving the room.
Officer Bolte testified that during the surveillance, he saw the defendant leave room 306 and go to the fourth floor of the motel. Officer Bolte followed, saw the defendant through a motel room window, and radioed the other officers to alert them that the defendant was in room 427. The defendant opened the door to room 427 and saw Officer Bolte talking on his radio. Officer Bolte testified that he identified himself as a police officer, displayed his badge, and asked the defendant if he could talk with him. As the district court found, the defendant then invited the officer into the room.
After entering the defendant‘s room, Officer Bolte asked him for identification and “who he knew or what he was doing in Room 306.” The defendant said that his sister occupied room 306. Officer Bolte then asked him whether he had any weapons or narcotics in his room. The defendant responded by directing the officer‘s attention to two cigars that were on the table and stating: “Just that marijuana there.” Upon breaking open one of the cigars, Officer Bolte determined that the cigar wrapping contained marihuana. The total amount of marihuana discovered was not more than one ounce.
At that point a second officer arrived at room 427. Shortly thereafter, the two officers observed a handgun in plain view on the floor under a chair near where they were standing. The officers retrieved the handgun and handcuffed the defendant. The officers then searched him and discovered a baggy in his groin area. According to Officer Bolte, “I pulled open [the defendant‘s] pants—or sweatpants type of thing—jogging suit—and I observed a plastic baggy in his genital area containing what I believed to be crack cocaine.”
The defendant was subsequently charged with the possession of cocaine,2 and as a special offender for having used, displayed, possessed, or had available for use a deadly weapon.3 Following a preliminary hearing, the case was bound over for trial. Thereafter, the defendant moved to suppress the cocaine, arguing that
The trial court granted the defendant‘s motion to suppress the cocaine, agreeing with him that Officer Bolte did not have authority to arrest him under
II. Subsection 18-18-406(2)
(2) Whenever a person is arrested or detained for a violation of
subsection (1) of this section , the arresting or detaining officer shall prepare a written notice or summons for such person to appear in court. The written notice or summons shall contain the name and address of such arrested or detained person, the date, time, and place where such person shall appear, and a place for the signature of such person indicating the person‘s written promise to appear on the date and at the time and place indicated on the notice or summons. One copy of said notice or summons shall be given to the person arrested or detained, one copy shall be sent to the court where the arrested or detained person is to appear, and such other copies as may be required by the law enforcement agency employing the arresting or detaining officer shall be sent to the places designated by such law enforcement agency. The date specified in the notice or summons to appear shall be at least five days after such arrest or detention unless the person arrested or detained demands an earlier hearing. The place specified in the notice or summons to appear shall be before a judge having jurisdiction of such class 2 petty offense within the county in which the class 2 petty offense charged is alleged to have been committed. The arrested or detained person, in order to secure release from arrest or detention, shall promise in writing to appear in court by signing the notice or summons prepared by the arresting or detaining officer. Any person who does not honor such written promise to appear commits a class 3 misdemeanor.
An apparent anomaly arises from the fact that the statute provides that a person may be arrested or detained for the possession of one ounce or less of marihuana and also provides that the arresting or detaining officer “shall” prepare a written notice or summons and that the suspect is to be released upon signing a promise to appear. The defendant argues that the statute requires an officer to issue a summons5 but does not allow an officer to effectuate an arrest. The prosecution counters that the statute confers discretion upon an officer either to arrest an individual or to issue a summons. We disagree with both contentions and hold that the statute requires the officer to issue a summons and thus prohibits custodial arrests but does not prohibit non-custodial arrests and
When we construe a statute, we seek to ascertain and give effect to the intent of the General Assembly. E.g., Rowe v. People, 856 P.2d 486, 489 (Colo. 1993); People v. Terry, 791 P.2d 374, 376 (Colo. 1990). To determine legislative intent, we first look to the language of the statute. Terry, 791 P.2d at 376.
Furthermore, in People v. Clyne, 189 Colo. 412, 414, 541 P.2d 71, 72 (1975), we noted that a modern policy has emerged favoring the issuance of citations and summonses over custodial arrests for minor offenses. See also II American Bar Association, ABA Standards for Criminal Justice, Standards 10-2.1 & 10-2.2 (2d ed. 1980 & 1986 Supp.); 2 Wayne R. LaFave, Search and Seizure § 5.1(h) (2d ed. 1987 & 1994 Supp.) (hereinafter cited as “LaFave“). The Colorado General Assembly has “given effect to this policy by requiring the issuance of a penalty assessment notice or summons in ordinary traffic violations.” Clyne, 189 Colo. at 414, 541 P.2d at 72.
Because (i)
III. Custodial vs. Non-custodial Arrests
A.
The word “arrest” may refer to either a “custodial arrest” or a “non-custodial arrest.”6 A distinction may be drawn between custodial arrests, which are made for the purpose of taking a person to the stationhouse for booking procedures and the filing of criminal charges, and non-custodial arrests, which involve only temporary detention for the purpose of issuing a summons. The police may conduct a full search only when incident to a lawful custodial arrest. See, e.g., United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 476–77, 38 L.Ed.2d 427
In Robinson, the defendant was stopped in his car for operating a motor vehicle after revocation of his operator‘s permit. Robinson, 414 U.S. at 220, 94 S.Ct. at 469-70. That offense carried a mandatory minimum jail term, a mandatory minimum fine, or both. Id. The police effected a “full custody arrest,” which a testifying instructor for the police department defined as “one where an officer ‘would arrest a subject and subsequently transport him to a police facility for booking.‘” Id. at 221 n. 2, 94 S.Ct. at 470 n. 2. The arresting officer then conducted a search incident to arrest and found a crumpled cigarette package in the defendant‘s coat pocket. Id. at 221-23, 94 S.Ct. at 470-71. After opening the package, the officer found fourteen gelatin capsules of white powder which, upon later analysis, proved to be heroin. Id. at 223, 94 S.Ct. at 471. On appeal, the United States Supreme Court held that “in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” Id. at 235, 94 S.Ct. at 477 (emphasis added). The court therefore upheld the trial court‘s admission of the heroin into evidence. Id. at 237, 94 S.Ct. at 477.10
In Gustafson, the defendant was placed under arrest for failure to have his vehicle operator‘s license in his possession. Gustafson, 414 U.S. at 262, 94 S.Ct. at 490. Thereafter, the police searched the defendant and discovered marihuana cigarettes in a cigarette box inside his coat pocket. Id. After discussing the principles arising from Robinson governing searches incident to custodial arrests, id. 414 U.S. at 263-266, 94 S.Ct. at 491-92, the Supreme Court upheld the admission of the cigarettes as the result of a search incident to a lawful custodial arrest. Id. at 266, 94 S.Ct. at 492.
Finally, in Bischofberger, this court reversed the suppression of certain evidence because the suppression was “based on an incorrect legal standard with respect to the scope of a search incident to a lawful custodial arrest.” Bischofberger, 724 P.2d at 661 (emphasis added). The police, in Bischofberger, conducted a search incident to arrest after placing the defendant under arrest and handcuffing him. Id. The defendant was arrested based on outstanding warrants and the custodial arrest was therefore lawful. Id. at 661, 665. We emphasized the fact that “a search incident to a lawful custodial arrest is quite broad.” Id. at 664 (emphasis in original).
Robinson, Gustafson, and Bischofberger, therefore, stand for the proposition that a full search incident to arrest is authorized when police effect a lawful custodial arrest.
As noted above, however, a custodial arrest is inconsistent with express statutory language requiring the police officer to issue a summons. See, e.g., Clyne, 189 Colo. at 414-15, 541 P.2d at 72-73; see also
A statute that mandates the issuance of a notice or summons, however, is consistent with a non-custodial arrest. See Clyne, 189 Colo. at 414-15, 541 P.2d at 72-73. A non-custodial arrest is made on probable cause, see
The prosecution argues that if the term “arrest” in the phrase “arrest or detention“—as employed in
This argument neglects the fact that non-custodial arrests are sometimes referred to as “detentions” and sometimes as “arrests.” In Clyne, the defendant‘s backpack was searched after he was arrested for hitchhiking, a violation of the Municipal Code of the City of Loveland, which had adopted by reference the Model Traffic Code for Colorado Municipalities. Clyne, 189 Colo. 412, 541 P.2d 71. Under the Municipal Code, which established a penalty scheme for traffic violations, the police were required, under the circumstances of that case, to issue a notice or summons to the defendant. Id. at 415, 541 P.2d at 73. We determined, therefore, that “a custodial arrest for a hitchhiking violation under the record here was not authorized and was therefore unlawful.” Id. Because a full search incident to a custodial arrest was thus prohibited, we were required to determine whether the search that did occur under the circumstances of the case was proper. We stated: “The issue before this court is the permissible scope of a warrantless search incident to a lawful noncustodial arrest for a minor traffic violation.” Id. at 413, 541 P.2d at 72 (emphasis added). In discussing this issue, we analyzed the standards that govern searches incident to arrests for “a minor traffic violation or for a minor municipal offense.” Id. In Clyne, therefore, the non-custodial detention for a minor traffic offense was denominated an “arrest.” See also Mota, 982 F.2d at 1388 (noting that under California law, after a person is arrested for an “infraction,” the arresting officer is without legal authority to take the person into custody unless the person refuses to present identification or to sign a promise to appear); Thomas, 614 So.2d at 470-71 (holding that the word “arrest” in an ordinance “does not necessarily mean a full custodial arrest“); 2 Lafave § 5.2(h) at 466 (stating that “the temporary detention on the scene for purposes of giving a traffic citation . . . might well be considered an arrest which is other than ‘custodial’ “).
Although non-custodial arrests are sometimes referred to as arrests, they have also been described merely as detentions. In Bischofberger, we described Clyne as involving “a temporary detention of a suspect pending the issuance of a summons for a minor traffic or ordinance violation.” Bischofberger, 724 P.2d at 664 (emphasis in original). The phrase “non-custodial arrest” was not employed in that opinion. Similarly, in People v. Meredith, 763 P.2d 562, 565-66 (Colo. 1988), we discussed the holding in Clyne exclusively in terms of “temporary detention” rather than “non-custodial arrest.” In light of the fact that non-custodial arrests have been described both as arrests and as detentions, it is not unusual or significant that the legislature included both designations in
Therefore, in the present case, the police were not permitted to make a custodial arrest of the defendant and thus were not permitted to make a full search incident to arrest as authorized under the Robinson line of cases. Rather, they were entitled only to make a non-custodial arrest for the purpose of issuing a notice or summons. To decide whether the cocaine found on the defendant was admissible, therefore, we must determine whether the search of the defendant exceeded the permissible scope of a search incident to a non-custodial arrest.
IV. Search Incident to Non-Custodial Arrest
The proper scope of a search incident to a non-custodial arrest was directly addressed in Clyne. Clyne, 189 Colo. at 413, 541 P.2d at 72. In that case, we relied upon People v. Valdez, 182 Colo. 80, 511 P.2d 472 (1973), and Cowdin v. People, 176 Colo. 466, 491 P.2d 569 (1971), for guidance on this issue.
In both Cowdin and Valdez, we indicated that in the context of a search incident to arrest, an officer may conduct a “pat-down” search for weapons, under the standards established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),12 as well as a search for instrumentalities or evidence of the specific crime for which the officer had probable cause to arrest. Valdez, 182 Colo. at 83-84, 511 P.2d at 473–74; Cowdin, 176 Colo. at 470-71, 491 P.2d at 571-72. However, when discussing these standards in the context of a search incident to arrest, we made no distinction between searches incident to custodial arrests and those made incident to non-custodial arrests.
As we noted in Bischofberger, the standards set forth in both Cowdin and Valdez as applied to custodial arrests have been invalidated by the United States Supreme Court in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), and Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427. Bischofberger, 724 P.2d at 662-64. However, those standards remain viable in the context of non-custodial arrests.13 In Clyne, we noted that Robinson and its companion case, Gustafson, concerned the standards applicable to a search incident to a custodial arrest. Clyne, 189 Colo. at 414, 541 P.2d at 72. We held, therefore, that Robinson and Gustafson did not control because under the facts in Clyne, a custodial arrest was not justified. Id. at 414-15, 541 P.2d at 72-73; accord Thomas, 614 So.2d at 471 (holding that Robinson and Gustafson are not controlling when the applicable ordinance or statute only allows the arresting officer to issue a citation or notice to appear); State v. Martin, 253 N.W.2d 404, 406 (Minn. 1977) (holding that the officer had no discretion to subject the arrestee to a custodial arrest for the petty misdemeanor offense of marihuana possession, therefore “the Robinson-Gustafson rule does not justify the search“). Rather, because the issue before
Therefore, in the context of a non-custodial arrest, the arresting officer is entitled only to: (1) conduct a pat-down search for weapons in circumstances where such a search would be authorized under the Terry line of cases; and (2) search for instrumentalities or evidence of the specific crime for which the officer had probable cause to make the arrest. Usually, in the case of non-custodial arrests for traffic violations, at most only a pat-down search will be indicated, since a search of the person generally will not reveal instrumentalities or evidence relating to such offenses. See Valdez, 182 Colo. at 84, 511 P.2d at 474 (observing that the scope of a search incident to an arrest for a minor traffic violation or a minor municipal offense will be quite limited because the instrumentalities or evidence of such crimes will be minimal or non-existent); see also Wayne R. LaFave, “Case-by-Case Adjudication” versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup.Ct.Rev. 127, 150-51.15
Non-custodial arrests for possession of one ounce or less of marihuana in violation of
V. Application to Present Case
In the present case, the defendant pointed out the marihuana to the officers, who then noticed a handgun lying on the floor. At that point, the officers handcuffed the defendant and conducted a search of the area and
Prior to being told that he was under arrest, the defendant had been subjected only to a non-custodial arrest. The fact that the police handcuffed him in itself did not necessarily transform the detention into a custodial arrest. See United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993) (noting the recent trend allowing police to use handcuffs during a Terry stop and observing that nine United States courts of appeals have determined that such measures do not necessarily turn a lawful Terry stop into an arrest under the Fourth Amendment). The non-custodial arrest and presence of a visible handgun entitled the police to make a pat-down search for weapons.17 Furthermore, the non-custodial arrest for possession of one ounce or less of marihuana entitled the police to search for further evidence of marihuana possession. Therefore, the search of the defendant‘s person that produced the cocaine fell within the proper scope of the search incident to this particular non-custodial arrest.18
In resolving the defendant‘s motion to suppress, the trial court was correct in ruling that the only option available to the officers was to issue a summons. The trial court was also correct to the extent that it ruled that the officer had no right to make a custodial arrest of the defendant for possession of an ounce or less of marihuana. The trial court erred, however, in ruling that the officer was not entitled to make a search incident to an arrest. Although it is true that a full search incident to a custodial arrest was prohibited in this context, the officer was entitled to make a limited search incident to a non-custodial arrest. The proper scope of this search, under the circumstances of this case, was coextensive with a full custodial search because
VI. Strip Search
The defendant argues that even if the search was otherwise proper, the cocaine should be suppressed as the fruit of an illegal strip search conducted in violation of
The trial court suppressed the cocaine based on its construction of
Based upon the foregoing analysis, we hold that the suppression order must be reversed and the case remanded to the district court for further proceedings consistent with this opinion.
ROVIRA, C.J., concurs in the result only.
VOLLACK and MULLARKEY, JJ., join in the concurrence.
Chief Justice ROVIRA, concurring in result only:
I agree that the trial court erred in suppressing the cocaine found on the defendant. However, I do not agree with the majority opinion‘s interpretation of
The majority opinion holds a police officer may place a suspect under non-custodial arrest, as opposed to a custodial arrest, when issuing a written notice or summons to a person possessing one ounce or less of marihuana under
The distinction between custodial and non-custodial arrests has appeal to justify the result here because of the ambiguity of
I
The majority‘s distinction between custodial and noncustodial arrest has no statutory foundation. In interpreting a statute, the court must give effect to the General Assembly‘s intent and give consistent and sensible effect to all of its language.
Nowhere in the Colorado Revised Statutes is the term “arrest” defined nor is there any indication that the legislature intended to divide arrests into specific categories.
By contrasting a custodial arrest with a detention for the purpose of issuing a summons, the majority suggests the courses of action are mutually exclusive.21 However,
II
The need for the custodial/non-custodial distinction hinges on the majority‘s definition of custodial arrest. The majority explains that a custodial arrest is defined as an arrest for the purpose of taking the person down to the stationhouse for booking procedures. Maj. op. at 316. The majority distinguishes a non-custodial arrest on the basis that such an arrest involves only a temporary detention while an officer issues a summons. Id. Both must be supported by probable cause. Id. at 317.
I do not agree with the majority‘s narrow definition of custodial arrest or its attempt to draw a distinction with a non-custodial arrest. The majority cites to People v. Bischofberger, 724 P.2d 660, 664-65 (Colo. 1986) for support of its custodial arrest definition. Maj. op. at 316. However, the authorities cited in Bischofberger, 724 P.2d at 662 n. 4, in support of this definition state that an arrest usually means a trip to the stationhouse, but they do not divide arrest into custodial/non-custodial categories. See Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968); People v. Tottenhoff, 691 P.2d 340, 343-44 (Colo. 1984). Black‘s Law Dictionary defines custodial arrest as “[c]onfinement or detention by police or government authorities during which a person is entitled to certain warnings as to his rights when questioned” (emphasis added) but it does not require a suspect to be taken to the station. Black‘s Law Dictionary 384 (6th ed. 1990).
Courts, including the United States Supreme Court, have added descriptive adjectives to the term arrest.23 Those adjectives include: custodial arrest, Gustafson v. Florida, 414 U.S. 260, 264, 94 S.Ct. 488, 491, 38 L.Ed.2d 456 (1973); full custody arrest, United States v. Robinson, 414 U.S. 218, 221, 94 S.Ct. 467, 470, 38 L.Ed.2d 427 (1973); full-fledged, albeit informal arrest, United States v. Corral-Franco, 848 F.2d 536, 541 (5th Cir. 1988); formal arrest, People v. Thomas, 839 P.2d 1174, 1178 (Colo. 1992); and full-scale arrest, People v. Severson, 39 Colo.App. 95, 98, 561 P.2d 373, 375 (1977). These distinctions turn on the concept of custody and not on whether an officer transports a suspect to the station even though that may occur. They do not create new categories of arrests with different standards to be applied.
III
Custody is determined by whether a reasonable person in the suspect‘s position would consider himself deprived of his freedom of action in any significant way.24 Thomas, 839 P.2d at 1178; People v. Harper, 726 P.2d 1129, 1131 (Colo. 1986). The Supreme Court has held custody attaches whether or not an officer brings a person to
The majority opinion relies heavily on United States v. Robinson, United States v. Gustafson and People v. Bischofberger to uphold the custodial/non-custodial distinction.25 A California court reviewed both Robinson and Gustafson and rejected the contention that a custodial arrest could only result upon the arresting officer‘s intent to book the defendant. In re Demetrius A., 208 Cal.App.3d 1245, 256 Cal.Rptr. 717, 719 (1989). The court held that the Robinson-Gustafson rule for searches incident to custodial arrests was applicable where the defendant was lawfully arrested and taken into custody by the officer in order to transport the defendant to his home. Id. “[T]he lawfulness of the search turns not on whether the officer intended to release the defendant after having him in custody, but on whether the officer was justified in arresting the defendant and taking him into custody in the first place.” Id.
The distinction between custodial and non-custodial arrests is nebulous at best. The majority‘s definition of custodial arrest is incorrect, thus making it unnecessary to distinguish it from a non-custodial arrest.
IV
This case may be analyzed under existing Fourth Amendment principles without further confusing an already complex area of law. Officer Bolte had probable cause to arrest the defendant for violating
“[W]e must resist ‘the understandable temptation to be responsive to every relevant shading of every relevant complexity’ lest we end up with ‘a fourth amendment with all the character and consistency of a Rorschach blot.‘” Wayne R. LaFave, “Case-by-Case Adjudication” versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup.Ct.Rev. 127, 142 (citing Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 375 (1974)). The majority bifurcates arrest law solely to rectify the ambiguity of this statute.
In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the court stated
[The] Fourth Amendment doctrine, given force and effect by the exclusionary rule is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged. A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions are almost impossible to apply by the field officer. Id. at 458, 101 S.Ct. at 2863 (quoting Wayne R. LaFave, “Case-by-Case Adjudication” versus “Standardized Procedures”: The Robinson Dilem-
ma, 1974 Sup.Ct.Rev. 127, 141).
The majority‘s definition of custodial arrest and the distinction drawn between it and non-custodial arrest, the cornerstone of the opinion, does not withstand careful scrutiny. By establishing distinct categories of arrest, the majority has created a tenuous and burdensome distinction, one extremely difficult for practical application by the police who must comply with Fourth Amendment law.
The officers in this case did not violate the defendant‘s Fourth Amendment rights. I would not suppress the cocaine found on the defendant, and therefore, I concur with the majority‘s result only.
I am authorized to say that Justice VOLLACK and Justice MULLARKEY join in this concurrence.
Notes
Although a custodial situation will not automatically give rise to an arrest, I fail to comprehend how an arrest may be had without the arrestee inherently being in custody.