*1 No. 26524 v. Cornelius J. the State Colorado (526 1315) 7, 1974. Decided October *2 Brown, L. Attorney, Elliott, Nolan District Thomas G. for Deputy, plaintiff-appellant. May, H. for defendant-appellee.
Thomas En Banc. opinion
MR. JUSTICE LEE delivered the of the Court. appeal interlocutory is an ruling This from an which granted defendant-appellee’s suppress motion to from evi- Sears, dence alleged a Roebuck credit card. It was the by unauthorized use of this credit card Cruz which resulted filing a two-count charging information him with second-degree forgery attempt and criminal in violation of Perm. Supp., C.R.S. 40-5-103 and 40-2-101.
The basis Cruz’ for his warrantless arrest was without cause and the seizure the credit card incident to the arrest violated his rights constitutional under the Fourth Amendment. We disagree ruling with the trial court’s and therefore reverse.
During evening January 14, 1974, a man and purchased portable woman a Sears, color at television set Roebuck & Co. Westland They store in Lakewood. produced a card Raymond in the name of Duke. purchase by up was held department the credit for the reason that the given by the Raymond address customers differed from by Duke’s address department as shown the credit records. purchasers were pick up told to following the TV set the morning. day, Raymond
The next Mrs. reported Duke to Sears the purse theft of her Raymond which contained Duke’s Sears morning, telephoned man Sears a Later card. pick upit he could concerning was advised the TV set. and do so. The he down would come he stated and theft were then notified of the credit card police Lakewood Agents purchase. Muller and Janssen attempted of the store, its where surveillance of to the Sears responded pickup area was commenced. package during forty-five minutes, waiting approximately After persons” department, into that “one or two came which a.m., appeared pickup area where 11:30 Cruz at about Agent Muller observed a Sears credit talked with a clerk. he edge hand, of the which he held below in Cruz’ during glanced and at which his conversa- service counter inquired concerning the clerk. Cruz the location tion with Agent store, pay telephone. He left followed a looking street, up and down the Cruz After Janssen. the store. Janssen then identified himself as re-entered police officer asked for his identification. Janssen returning Upon then Cruz to return to the area. asked *3 there, attempting something push Cruz was observed to Agent right the with foot. then under counter his Janssen the Duke on the the discovered credit card floor underneath the and it over to counter. retrieved credit card turned Agent Muller.
Previously,
store,
temporarily
Cruz
of the
while
out
concerning
Agent
inquired
had
of the clerk
her
Muller
had
with Cruz. Muller was informed that Cruz
conversation
pick up
package
the
Duke.
the clerk he was there to
for
told
examining
card, Agent
the
Muller then
After
to Cruz that he was under arrest and advised him
announced
Arizona,
436,
rights
required by Miranda v.
384 U.S.
of his
as
1602,
of arrested at the time he re-entered the that Cruz had been by Agent agree and Janssen. We that at store was confronted point in time Janssen did not have cause to arrest. an make between opinion, the initial confrontation our
In 298 temporary in
Janssen and Cruz was no more than a detention by investigation, of a as the the nature field is sanctioned Terry Ohio, 1, following decisions: v. 392 88 S. Ct. U.S. Stevens, 889; 399, 1868, 20 L.Ed.2d v. 183 Colo. 517 1336; People Marquez, 231, P.2d 516 P.2d 1134; People, Stone v. Colo. 495. In Stone, justify were supra, standards delineated which a would temporary investigation, detention field as follows: “* * * lawfully to question- In order detain an individual for ing, (1) the officer have a suspicion must reasonable that the committed, crime; (2) commit, individual has or is about a purpose reasonable; (3) the of the detention be must the the character of must be detention reasonable when consid- light purpose.” ered of the in case, the
Applying tests to this we find Janssen following was aware the circumstances which in our view suspicion a raise reasonable that Cruz or committed was about to commit stolen; a crime: a credit card had been an attempt night had been purchase made before to a TV card; set a use stolen credit man had called Sears morning concerning picking up earlier that the merchandise and, being so, after he could advised do that he announced pick up TV; would come down and or one two persons appeared other had prior area to Cruz’ coming in; appeared with a hand and his had clerk; discussion with the store temporarily then departed store, looking up street; from and down the voluntarily he thereafter re-entered the store. foregoing, In view of the it purpose cannot be said that the — temporary
of the detention was unreasonable determining whether the parties Cruz was one of to the theft of the attempted credit card and the purchase fraudulent duty TV set. The officers’ in these circumstances investigation. this demanded field *4 Thirdly, of character the detention was reasonable light when considered in purpose. No factor has been called to our might opposite attention which lead to an prevented from not that Cruz was note conclusion. We voluntarily and without re-entered leaving the store. request. the officer’s complied with hesitance point this above, and circumstances the facts noted As finding justify a to were insufficient of events sequence however, ingredient, missing cause. The probable credit attempted to conceal the stolen when Cruz supplied area counter. underneath on the floor card by Agent Muller was the warrantless arrest We hold that to should The motion probable cause. supported denied. have been ruling is reversed. dissents. JUSTICE ERICKSON
MR. dissenting: ERICKSON MR. JUSTICE respectfully dissent. I concluding of this case majority that facts errs in Therefore, the trial court’s area.”
bring
the “Stone
it within
suppress the credit
defendant’s
disposition of the
proper.
card was
(1971),
504,
In Stone be requirements three which must forth this court set question- temporary purpose detention for before satisfied constitutionally ing can be deemed to be and identification Only an issue on the facts of the first test raises permissible. cause, “the person detain a without this case. To suspicion have a reasonable that individual officer must committed, commit, a or about to crime.” has is knowledge any which would Janssen had no facts committed, about to suspicion Cruz had or was that create majority by the do not commit, a The elements listed crime. innocence. The suspicion and are consistent with create had been stolen and knew that a officers pick up the set. The appear television someone hand, had a card in his a fact saw that Cruz officer normal, considering that he was in the perfectly which is ostensibly to transact business. He also knew store Sears *5 300 that
Cruz had to the clerk to obtain related was there the for Duke. television set Janssen did know whether not Duke had ordered set. police taken action does not fall within the Terry Ohio,
exception 1, enunciated in v. 392 U.S. 88 S.Ct. 1868, (1968), 20 nothing L.Ed.2d 889 because in the record stop necessary indicate protect was officer, suggest or to even an inference defendant dangerous. was People Montoya, 299, armed and v. (1974) (dissenting 524 Stevens, P.2d opinion); People 76 v. 399, 183 (1973) Colo. 517 P.2d (dissenting 1336 opinion); Gurule, 512, 175 (1971) Colo. 889 P.2d (dissenting opinion).
Accordingly, properly sus- tained.
No. Arthur Golden E. v. District Court in and the City Denver, Colorado, County State Honorable McLean, court Robert E. of said Judge
(527 60) Decided October 1974.