People v. in the Interest of D.F.

complied until stated after he has 241.22(b)-(d).

C.R.C.P. Colorado,

The PEOPLE of the State

Petitioner-Appellant, D.F., Juvenile-Appellee,

In the Interest of

And

Concerning Z.A., Respondent-Appellee.

No. 96SA217. Colorado,

Supreme Court of

En Banc.

Feb. Ritter, Jr., Attorney,

A. William District District, Coats, B. Judicial Nathan Second Denver, Deputy Attorney, Chief District Petitioner-Appellant. Vela,

David F. Colorado Public State De- fender, Connell, Deputy Matthew S. State Denver, Defender, Juvenile-Appel- Public Respondent-Appellee. lee and Opinion of Justice HOBBS delivered the the Court. interlocutory pur- appeal, brought

In this 16-12-102(2), suant to section 8A C.R.S. (1996 Supp.), 4.1, prosecution and C.A.R. of an order seeks review entered City County Court of the Juvenile suppressing Denver of a evidence defendant, juvenile D.F. found on juvenile that reason- determined not exist the time offi- able did investigatory stop. cers effected the Based circumstances, we hold officers did have a reasonable juvenile seize shotgun carrying. Accordingly, he was or- reverse der.

I. February On the afternoon Department an anon- Denver Police received young ymous that one of three males in the of 1800 South southbound area weap- Stuart Street was H on, possibly a BB rifle.1 One of the males ju- vehicle. One of the officers ordered the poncho. was dressed in a Two officers re- put veniles to their hands in the air. sponded to the call and went to the location stopped put D.F. hands the air. where the three individuals were last seen. One of the officers then ap- observed what there, Not them the officers contin- peared shotgun protruding to be a from the they Harvey ued southbound until to came pants waistband of the D.F. wearing. was Park, vicinity in the of South Stuart Street gun The partially was in concealed D.F.’s left and West Evans Avenue. There the officers pant leg, with the shotgun barrel of the males, spotted young appeared three who almost to his ankle and the stock of the years old, walking together be about thirteen shotgun high above his waist. D.F. was sub- park. in the One of them was sequently arrested for poncho brown walking and one was stiff- weapon, gauge a .12 shotgun, Winchester legged. juveniles traveling The were toward 12—105(l)(b), violation of section 8B 18— School, adjacent Kunsmiller Middle which is (1986 C.R.S. Supp.). gun & 1996 The was park. to the south side of the It was about unloaded, D.F. eight but had rounds of live Monday 1:30 on a afternoon. Several adults ammunition in pants pockets. his One of the approximately and ten to twelve children be- juveniles other two a pump-ac- surrendered ages tween the of two and five were in the tion BB rifle the officers. playground at the time. The were attorney D.F.’s suppress filed a motion to traveling neighborhood towards the school. all evidence obtained stopped, after D.F. was The officer did not draw his own claiming that stop was unconstitutional safety because he “was fear of the of these because there was no articulable and little children that were there.” suspect basis in fact that criminal On both direct аnd cross-examination at place, had taken progress, was in or was hearing, Officer Paul Mu- about to occur. (Officer Murawski) rawski testified that D.F. juvenile The agreed, stating walking though was concealing he were supported by was not suspi- something direct, pants. his On he testi- and, consequently, cion was in violation of fied: “I also par- noted that one of these rights. D.F.’s Fourth Amendment On June instance, ties —in [D.F.] —was 5, 1996, juvenile court issued its order leg very and his stiff such as to indicate granting suppress. the motion to prose- The that he had —he either was not able to bend interlocutory cution appeal. filed this something it or preventing him from bending leg.” cross-examination, During Officer Murawski testified that D.F “was II. walking in a years fashion that in [his] ten police We determine that the officers were police

with experience indicate[d] [him] justified in making investigatory stop possibility concealing of someone some- disarming juveniles. thing pants, party unless that would happen to be disabled.” Officer Murawski A. also any testified that he did not observe group other any three males or other The Fourth Amendment to the Unit wearing ponchos individuals park. protects ed States against Constitution un court did not find that Officer reasonable searches and seizures. See Peo Murawski’s should be disbelieved Greer, 528, (Colo.1993). ple v. any respect. arrest, probable absent cause to police officers drove the may stop person car onto the officer investiga lawn close to tory purposes narrowly exited the under cir defined Municipal 1. Section 38-129 gas operated gun of the Revised spring gun discharging Code or Denver, City County provides pellets metal or BB shot. part: relevant Denver, Colo., 38-129(a). Municipal § Rev. Code (a) any buy, It shall be unlawful for minor to carry person discharge any gun, on their air (Colo.1989) People (quoting P.2d v. P.2d cumstances. See (Colo.1985)). Savаge, To Such investigatory stop required determine whether an supported by the factual foundation Ohio, suspi- based on reasonable articulable by Terry 392 U.S. 88 S.Ct. (1968), cion, a court must take into consideration the People, and Stone 20 L.Ed.2d 889 (1971). officer facts and circumstances known to the P.2d 495 174 Colo. Greer, time of intrusion. held Supreme Court Terry, 530; 21- Terry, see P.2d at also 392 U.S. must able justify stop, “the (when judging the facts 88 S.Ct. point specific and articulable facts standard, objective against which, together rational infer- ask available to the officer “would facts, reasonably warrant ences from those at the moment of the seizure or the search at 392 at 88 S.Ct. that intrusion.” U.S. in a man of reasonable caution the “warrant Furthermore, Terry Court estab- 1880. the appropri- that belief action was may stop an individual for “police lished that ate?”). protective questioning perform and a brief upon a reasonable search based The facts to known the officer in activi- suspect engaged ‍​​​‌​‌​​​‌​​​‌​‌​‌‌‌​‌‌​​‌‌‌‌‌​​​‌‌‌‌‌​‌‌‌​​‌‌​​‍that the is criminal encounter, together “taken with time of that he is armed.” ty and a belief reasonable facts, from must rational inferences these Clipper, 973 F.2d United States a criminal ac create (D.C.Cir.1992) Ohio, (citing Terry v. 392 tivity,” justify order to intrusion into (1968)). L.Ed.2d 889 U.S. S.Ct. privacy by caused the investi individual’s Greer, gatory 860 P.2d at 530. The officer, Stone, police we held that a tip, in the information contained addition arrest, having probable cause to less than corroborating by to the observations made may temporarily detain an individual for cer- officers, together must be considered provided that investigatory purposes, tain whether, totality of determine under the following conditions exist: circumstances, grounds investigatory for an (1) the must have a reasonable sus- officer Contreras, stop existed. See P.2d at 555. committed, picion has that the individual (2) crime; commit, a or is about to Standing alone, anonymous an tip purpose the detention must be reason- reliability lacks “indicia of sufficient to (3) able; the character of the deten- and suspicion.” establish reasonable tion reasonable when considered must be anonymous tip at 192. light purpose. together corroborating observations Colo, (the 508-09, “may specific provide 485 P.2d at 497 the officers a and artic- 16-3-103, test); § suspect see 8A three-prong Stone ulable basis fact to that an individ (1986).2 in,” in, engaging engaged C.R.S. ual has or is is engage activity. about in criminal Id. ease concerns the first of the

This us, which case ar- three conditions must satisfied In the before defense counsel juvenile justify stop,3 gued following a that an court the offi- “officer Stone specific police ‘an and in fact’ that the must “corrob- have articulable basis cer’s anonymous suspecting tip viewing an individual” commit orate the conduct committed, juvenile appar- ting, has or is about to commit a that is criminal.” The court White, Contreras, activity. People ently agreed. Citing criminal Alabama v. (2) per- peace stopped a 2. codified this test under section When officer has Colorado has 16-3-103, provides: questioning pursuant son for to this section reasonably suspects personal safe- his (1) suspect. peace may Stopping A it, ty requires pat-down conduct a he reasonably any person suspects who he person weapons. committed, search of committing, has about to may require give crime and commit a him Colorado, address, an is also name and identification if avail- able, Greer, stop.” explanation as a and an of his actions. The known "Stone stopping shall not constitute arrest. n. 1.

IS reliability 110 L.Ed.2d 301 this case U.S. S.Ct. demonstrates (1990), juvenile anonymous adequately here determined tip was corrobo- anonymоus tip lacked rated on-the-seene observations of the suppressed. officers, the evidence It deter entailing an articulable and that, merely mined suspect because the contained basis fact to that one of easily existing youths obtained at the time carrying could be given, weapon. was rather than inside information Accordingly, we hold that the in- defendant, predicting future actions it vestigatory stop justified. juvenile reliability.

lacked The court’s find

ings following: of fact included B. phone received call from a us, In the ease before source unknown. The caller stated that did not address in fact the there were three males the area and one walking evidence that D.F. stiff-legged, wearing poncho pos- along fact which other facts found to BB responded sible rifle. officers exist the trial court corroborated the reli- the area and noted three 12-13 ability anonymous tip concerning years Harvey old Park. One justified investiga- poncho. a brown tory stop totality under of the the circum- police po- The officers drove marked determining stances. whether to remand lice car onto and exited the lawn the car. the case for regarding additional fact point, inquiry, At that further without the fact, guided by this omitted we are a review juveniles officers ordered the disposition of our prior suppression of order stopped put [D.F.] his hands in the air. cases. juveniles The other walking. two continued Our function involves the interre- put up and [D.F] his hands turned around lationship evidentiary between the facts of revealing shotgun a in his waistband. record, court, findings the trial applicable legal standards review of the situation, In this the officers received an lower court’s of law. In People conclusion anonymous juve- tip that there were three Quezada, (Colo.1987), 731 P.2d 730 we iterat- wearing niles and a poncho one was were ed the roles of the court and lower the vicinity Harvey [sic] of Park. At the reviewing suppression court in order eases: police of stop, time corroborated In reaching a on a decision motion to this observation three suppress statement, a custodial a court

juveniles walking in park were a and one engage factfinding specif- both —a wearing poncho. a inquiry phenomena ic into the historical of application the case—and law which in- juvenile The ruled that observa application volves the of controlling by police tions the two officers of the three legal by standard to the established through park, one the evidence. wearing poncho, a did not “create a rational activity” inference of A findings criminal and did not court’s historical are fact of “provide by reviewing the amount of information neces entitled to deference a sary requisite quantum if supported by establish the of and will not be overturned stop.”4 justify competent a An we evidence in the record. ul- totality conclude that circumstances in timate conclusion constitutional law following 4. The court entered the The a con- officers did not have and artic- clusion of law: suspecting ulable basis that a in fact for crime therefore, tip, reliability. place, progress, The has lacks is in or is about to anonymous tip Therefore, corroborated this with the fact supported occur. was not walking through that three were by and was in violation of park poncho. and one a This Thus, rights. [D.F.’s] Fourth all Amendment activity provide does not the amount of infor- sup- evidence obtained from necessary requisite mation to establish the pressed. Suppress granted. Motion quantum suspicion justify stop. We, court, with, review the unsupported like

that.is inconsistent reaching hоwever, subject of the circumstances evidentiary findings, legal ultimate conclusion or court, reviewing as is a to correction Dracon, example, People v. der cases. In legal application an erroneous suppressed trial court statements facts of the case. standard involuntary. P.2d defendant as omitted) (citations (emphasis Id. 732-33 (Colo.1994). The trial court did not address added). in its and order the evidence which statements bore whether defendant’s Accordingly, part of our review we police conduct. were induced coercive We the trial court’s “whether ascertain involuntary, noted that for a statement to be adequate and conclusions law of fact signifi play had to coercive People v. purposes appellate review.” inducing Id. at cant role in statement. (Colo.1990). McIntyre, P.2d court ‍​​​‌​‌​​​‌​​​‌​‌​‌‌‌​‌‌​​‌‌‌‌‌​​​‌‌‌‌‌​‌‌‌​​‌‌​​‍did not find that “findings the court’s examine whether We or, coercive, if “was coercive officer’s conduct adequately supported by fact are historical inducing role in played significant [de and whether the court competent evidence nor it find that fendant’s] statements” did legal applied the correct standard these by improper defendant’s was overborne “will LaFrankie, 858 findings.” People v. reviewing at 719. state conduct.” Id. We read record bearing evidence of record on the ultimate whether evidence before determine therefrom, legal to be in conclusion drawn supported “adequately the lower court cluding videotape interrogation legal ultimate conclusion.” district court’s whereby we viewed the officer’s demeanor (Colo. Jordan, People v. conduct, concluded coercion did 1995). inducing play significant role defendant’s statements. Id. Because this give deference to the factual We by supported thе conclusion the was sup are findings of the trial which record, that, we under the concluded by in the record. ported competent evidence circumstances, of the the state defendant’s O'Hearn, 1168, 931 P.2d People v. 1173 See voluntary and held that ments were we the Jordan, (1997); 891 P.2d at 1015 see also [the trial “determination that defen findings if (deferring to the district court’s involuntary were dant’s] statements by they supported evidence in adequately are Id.; Johnson, People see also v. reversed.” record). However, findings the when the (Colo.1994) (where 865 P.2d the sup clearly as not to find “are so erroneous conflicting record below reveals no evidence M.D.C./Wood, record,” Inc. v. port the encounter, regarding the details of the re Mortimer, (Colo.1994), P.2d unnecessary appellate the mand where aside, Schrader, People we set them see v. standard). legal apply court could the correct (Colo.1995). 898 P.2d 33 When trial Here, juvenile court made factu law “is inconsistent with court’s conclusion of findings enabling al but did not in review evidentiary record, unsupported by” key that one clude uncontradicted fact suppression we have order. reversed juveniles walking stiff-legged. was Ob Quezada, People v. 731 P.2d at 732. An scene, fact, by an officer on the served subject erroneous conclusion of law “is together facts court found to with the by reviewing correction court.” Id. at 733. exist, tip of the corroborated the appellate by When review hindered alleged carry young that a male was which findings key juve absence of factual as to contest ing Though weapon. issues, evidentiary- ed or when unresolved this fact nile court did not include its facts, regard fact, findings conflicts exist with to material that the it did find finding by testimony fact we have remanded for further officer’s should be disbelieved. Turtura, People placed alongside facts the сourt court. See When (Colo.1996); exist, People P.2d v. Suther found to this on-the-scene observation officer, land, (Colo.1994). by taking tip into ac- count, demonstrated an articulable basis in In People George, 914 P.2d reasonably (Colo.1996), suspect anonymous fact to tipster one or more an reported a possible could be armed with a con altercation between the individuals vehicles, weapon. reject cealed two adopting We an infer one of which was a van. We upheld suppression ence that trial court’s non-inclusion in its order because the only fact findings corroborating an pivotal anonymous uncontradicted fact entry was means that a van into parking court found the fact to lot. be not P.2d at upheld credible. When trial courts find that credible, order because the is not such observa- determina tions of the officer at the appear tions scene wеre “not the trial court’s sufficient in and, thus, suggest character or extent order upheld appeal. will be reliably that O’Hearn, particularized the informant had 1176; 931 P.2d at M.D.C./ knowledge of Wood, Inc., the defendant’s activities.” 866 P.2d at 1383. contrast, observations made disposition We do not view our that, here were enough extensive to- improper here finding. gether fact tip, they provided specific ‘When, case, as in this controlling facts suspect articulable basis to that criminal undisputed, legal effect of those taking place. evidentiary question constitutes a of law.” Lakeview record demonstrates that the Assocs., Maes, Ltd. v. adequately corroborated, 583-84 and contrary to the juvenile We are not bound conclu First, court’s conclusion. the offi- courts, sions of law reached lower id. at fairly cers had a description detailed 584, and, in justice the interests of they seeking. individuals They were were interloсutory context of an appeal,5 we need advised young three males had been not remand with directions that the court seen together in a southbound di- operative include uncontra- tipster rection. The said one of those males dicted historical fact clearly context poncho had ineluctably legal leads to a conclusion in possession a concealed rifle. When opposite to that reached the trial court. the officers along traveled the same route taking, they males were said to be court’s conclusion of law here park adjacent came to a to a school. There that reasonable did not exist under they juveniles, saw three male one a circumstances, the of sup- the is not poncho, brown walking park south in the ported by record; the contrary, to the playground toward the area. One was walk- properly officers making acted in the investi- ing stiff-legged something as if could be ob- gatory stop disarming juveniles. and structing his movement. It was 1:30 in the Schrader, (re- People v. 898 P.2d at 36-37 afternoon on Monday a versing a order because the walking were in the direction of the school. agree court did “not with the trial court’s Officer Murawski made his observation analysis entering and reasons for sup- that D.F. was stiff-legged before he order”); pression Weston, People v. 869 P.2d ordered stop put and their 1293, (Colo.1994) 1299 (although district up. so, they hands When did the officers significant did not discuss a issue shotgun saw the sticking pants out of the suppression ruling, we determined based on wearing. D.F. was our review of the record that the constitu- tionally permissible protective limits of a investigatory Because an stop is exceeded). search were not arrest, less intrusive than an the standard for prosecution certify interlocutory under C.A.R. appeal, text of an we arе conscious 4.1(a) interlocutory appeal that an is not taken liberty Aat Ae interests of defendant and Ae purposes delay for sup of and Aat evidence public prosecution interest in Ae of criminal pressed part a proof is substantial of Ae offenses are to be addressed in a manner which charge pending against Ae defendant. See Peo unnecessarily delay disposi does not the ultimate MacCallum, 758, (Colo. ple 1996). tion of Ae case. exercising our function in the con context, weapons rea stops is than that for in the concealed less reasonable Sutherland, soning 886 P.2d at in such cases probable cause. See the alternatives investigatory stop significant is less intrusive 686. “An risk. See United States involve and, (D.C.Cir. arrest, accordingly, police McClinnhan, a 500, than an 660 F.2d 502-03 investigatory stop may 1981) an and conduct (recognizing officer an officers have person weаpons with a of a for choice,” limited search whereby they “unappealing could ei for arrest.” Id. probable cause less than stop ther the defendant on the basis of the suspi precisely what reasonable Articulating carrying shotgun he was a sawed-off such, possible. As cion is not means or him a black briefcase could follow readily, are “not or even applicable standards through Washington hoping of streets legal a neat rules.” usefully, reduced to set would commit crime or brandish that he Gates, 213, 232, 103 462 U.S. S.Ct. Illinois v. weapon shotgun doors out of before (1983); 2329, 2317, also 76 L.Ed.2d see use); put to its intended State Kuah — States, —, U.S. v. United Ornelas (1980) 1374, uia, 464, Haw. —, L.Ed.2d 911 116 S.Ct. (describing police “duty-bound” (1996). argu Contrary to defense counsel’s temporary investigative make ment, the on-the-scene observations of person anonymously carrying identified as which corroborate the officer Smithers, rifle); People v. 88 Ill.2d require “viewing do conduct not (1980) Ill.Dec. 415 N.E.2d but, rather, criminal” involve articula- that is (evaluating light officers’ actions which, together with ble rational they to act—had not failure conducted facts, reasonably from the warrant inferences weapons, frisk someone could Contrary to the inference intrusion. injured). seriously have been killed here, conduct drawn complaint regarding person A awith compatible with innocent which is public place in a weapon cause justifying compatible with also be investigation. Terry, Supreme People v. intrusion. See limited (Colo.1990) Court stated that Rahming, 795 P.2d (“Factors proof which are not themselves justified in believing an officer is [w]hen may give illegal conduct suspicious that the individual whose behav- could, suspicion, ‘there investigating range he is close ior course, wholly in which be circumstances presently dangerous armed the offi- justify might lawful conduct others, appear or to it would cer to be ”). activity is that criminal afoot.’ Whether clearly deny unreasonable to the officer actually person necessary power to take measures to typically verified in the weapon cannot be person whether the is in fact determine investigatory stop. of an Neverthe absence carrying a weapon to neutralize the less, discovery does physical harm. threat Rather, justify requisite basis at 392 U.S. at 88 S.Ct. 1881. stop preexist. the tip The an informant’s III. determining factor when ana not the here, People conclude as did in We lyzing of an reasonableness Hutton, that “the trial court failed evalu- stop weapons complaint when a is involved. and, ate the of the circumstances in tip important The content of ascer therefore, apply did not the correct stan- taining has whether dard.” 831 P.2d been less reliable established. Information known to the officers at the time information required рrobable than that to show cause required prudently both allowed and them to may be taken account. Alabama v. into White, or make the and ascertain whether one 110 S.Ct. 2416. U.S. juveniles stop, was armed. tip’s potential and more of The level detail search, and seizure of the evidence was rea- danger revealed are to be Other considered. justified justified and the circum- investigatory police courts have sonable under grass, youths, stopped stances. See 789 P.2d at and ordered put them to their hands in the air. At that time, the officers gun observed the butt of a Accordingly, we reverse protruding from waistband of D.F.’s ruling court’s and remand the pants and he was arrested. proceedings case further consistent with opinion. this At suppression hearing, Officer Paul Murawski direct testified on examination SCOTT, J., specially concurs. anonymous had contained the approximate ages of the speciаlly concurring: Justice SCOTT cross-examination, color of poncho. On agree majority IWhile however, the officer revealed that he had not suppressing prosecu- trial court’s order indicated in either his statement or his of- reversed, tion’s I evidence should be write report anonymous fense con- view, separately because, my in as an appel- specific tained this information. The officer competent late court we are not to determine that, also testified on direct examination credibility the demeanor or of a witness who park, when he arrived at the he observed has testified before the court and trial there- D.F. stiff-legged, “such as to indicate reading fore cannot decide from something preventing him from transcript chambers matters testi- bending leg.” Again, cross-examination accepted, fied to should fact. The revealed that the officer’s observаtion of D.F. majority whereby crafts a rule absence of walking stiff-legged was not contained ei- findings appellate factual can be cured statements, ther of the officer’s two written testimony court’s review of a witness’ one police report of which completed Although record.1 provide such rule arrest, contemporaneous with the and was us, the correct result in the ease before I mentioned for suppres- the first time join departure cannot from the tradi- hearing. sion tional roles of our courts regarding leading an historical fact to a con- hearing After testimony, the officer’s Thus, although clusion of law. I too would and, trial court entered its of fact suppressing vacate the trial order White, citing Alabama v. 496 U.S. evidence, engaging instead in fact finding, (1990), S.Ct. 110 L.Ed.2d 301 deter- majority, as does the would return the mined that observed the offi- matter to the trial court for it to make fur- cers provide ‍​​​‌​‌​​​‌​​​‌​‌​‌‌‌​‌‌​​‌‌‌‌‌​​​‌‌‌‌‌​‌‌‌​​‌‌​​‍did not thе amount of informa- findings. ther necessary requisite tion to establish the quantum suspicion justify Im-

I. portantly, did the trial court not indicate in it whether found the officer’s February On two Denver incredible, or be credible officers received a from call dis- Nonetheless, part. or in whole the court patcher that three male were walk- concluded ing that “the officers did not have a southbound in the area of 1800 South basis fact for articulable sus- Stuart Street and that one them was wear- pecting ing place, that a crime poncho [had] possibly [was] a BB air information, progress, rifle. about to occur. [was] Based on that There- officers fore, proceeded general supported by was not area described reason- juveniles, suspicion able approximately observed three and was violation of [D.FJ’s 12- old, years rights.” walking through Accordingly, Fourth southbound Amendment Harvey youths Park. wearing suppressed Onе of the was the trial court the evidence and poncho. pulled interlocutory a brown officers appeal The onto followed. by merely I they

1. address here the trial court's omission of a the trial court because are not critical, However, legally operative, i.e., fact. legally operative, capable altering the ulti- also note that there be uncontested facts in mate conclusion of law. accept guidance the record that we can without justifies investigatory stop cannot an II. anonymous tip that premised be on an is under both United It is axiomatic unremarkable, every only by corroborated and the Colorado Con Constitution2 States 7 n White, day at activity. see also 496 U.S. making investigato an that before stitution 332, 110 at S.Ct. 2417. reasonably suspect must stop, an officer ry in, engaged engaged has is that an individual III. in, engage in criminal conduct. to or is about 30-31, Ohio, 1, Terry 392 U.S. 88 S.Ct. v. See case, instant In the (1968); 1884-85, 1868, 20 L.Ed.2d 889 Stone suppression hearing presented at the 485 P.2d People, 174 Colo. police officers who made the from one of (1971). permissibility constitutional The stop hearing of D.F. After initial arrest be determined its own stop of each testimony, and cross-examination direct of the circum upon facts based its of fact and trial court entered Garcia, People v. stances. See by that concluded observed (Colo.1990). requisite police did not establish “the officers stop.”4 quantum suspicion justify Here, dealing awith based we are The its conclusion on the fact court based supplied by anonymous an information upon itself, tip from the unknown informant “did tip, by that the anonymous tip. an future ac- not contain inside information or reliability lacks sufficient indicia estab- easily only easily predicted, but tions suspicion. People See lish reasonable existing conditions at the Contreras, obtained facts and P.2d White, at tip.” U.S. Therefore, time of the con- an is when Garcia, 2417; P.2d at 193. anonymous S.Ct. tip, to an pursuant ducted Importantly, the include in did not must be corroborated have held that police its the fact that specific by establish observations walking leg. had D.F. with a stiff observed suspect in fact to that the articulable basis engaging in criminal conduct. individual record, however, on its review of Based Id. majority engages in fact here additional support opposite conclusion that evaluating its whether standards informant, supplement totality of circumstances this case anonymous as “the corroboration, of the anon- level of is suffi demonstrates ed some ymous tip adequately corroborated were set cient to create reasonable here, offi- pertinent observations As on-the-scene forth Garcia. cers, entailing an articulable and ba- that corroboration of we noted Garcia youths suspect that one “commonplace or unre sis in fact to information that Maj. weapon.” pattern “a of conduct could be markable” or of finds, op. holding, majority 13. In so intrinsically unsuspicious” is not sufficient fact, corroborating circumstance not suggest reliably character or extent court, i.e., particularized knowledge the trial the officer’s had mentioned the informant stiff-legged. walking of D.F. 789 observation of the defendant’s activities. Thus, upon there is evidence the record the reasonable While 193. responded area and noted Amendment to the United States The officers 2. The Fourth pertinent part: provides in "The years Constitution juveniles old in Har- three 12-13 persons right people be in their secure juveniles vey One Park. against ... searches seizures unreasonable poncho. drove their brown officers shall not be violated.” policе car onto the law and exited the marked point, inquiry, car. At that without further II, § 3. Article of the Colorado Constitution [D.F.] officers ordered provides people "[t]he also shall secure put stopped and hands in the air. The his persons ... from unreasonable searches walking. [D.F.] two continued other and seizures.” revealing up put hands and turned around findings, court character- In written shotgun in a his waistband. ized the of officers as follows: observations relies, majority patently requisite which the it is dear determination of suspi- whether the by I, that no such of fact was made cion existed to make the stop, unlike Nevertheless, trial See id. at 14-15. majority, court. rely cannot on that factor because majority states that fact of the stiff “[the the trial court did not it in include its find- leg] corroborated the ings any or way indicate how it viewed alleged young carry- a that male was portion that of testimony. the officer’s As view, ing weaрon.” my Id. it above, noted only court stated that majority is inappropriate for the to consider up, officers drove noted three testimony such fact. as walking through park, and ordered them Thus, to supra upon note 4. See based agree majority I that where the the trial court’s limited findings prin- findings supported by of the trial court are ciples Garcia, articulated I believe that record, findings accepted those matter must be returned to trial for court they clearly on review unless erroneous. because, findings additional without further 14; maj. M.D.C./Wood, op. See Inc. v. regarding clarification the factor of stiff Mortimer, 1380, 1384 866 P.2d I leg, accepted in the record as accept findings also that note we are to of were, indeed, corroborated the officer “in- supported court trial when the record trinsically unsuspicious.” 789 P.2d very for the reason that trial court is at 193. especially positionеd well and better able than courts to determine credi however, majority, that determines bility University of witnesses. See Colo unnecessary remand for further (Colo. Derdeyn, rado v. 863 P.2d testimony because the regard- the officer 1993). Nonetheless, sup cases do these not ing leg the stiff was uncontradicted. See port proposition they for which are of maj. op. at 14-15. whether not majority provide fered and the fails other testimony this is uncontradicted has no bear- authority for such result. ing Simply on the issue us. before because testimony the officer’s is uncontested does have, example, for consistently disap We necessarily not that mean the trial court proved of the substitution new factual See, e.g., found it credible. Pioneer Constr. reviewing courts those made Richardson, 254, 259, Co. v. 176 Colo. Clark, Page the trial court. See (1971) (trial court, fact, as trier of (1979). Colo. 592 P.2d accept is not bound to even uncontradiеted clearly supports Where record the find fact); testimony as People, Robbins ings court, of the trial inappropriate it is (1960) (a 254, 263, Colo. 350 P.2d reading transcxipt, allow a accepting all accept court need not a statement true true, statements a witness as serve as testimony because there is no direct contra- credibility rejecting basis for determinations it). dicting testimony regarding stiff implicit in findings. the trial court’s factual leg is a critical factor our determination (Colo. Dover, here and we have no basis to determine what 1990). necessarily It does not follow weight, any, gave if trial accepts portion because a finder of fact testimony. testimony credible, relevant it be also testimony determines that the entire is simi Indeed, us, based on it the record before ease, larly competent. example, it entirely possible that found is reasonable to conclude that the trial сourt testimony regarding leg the officer’s the stiff part testimony found of the officer’s incredi purposefully be incredible and therefore ble. findings. chose not include fact in its cross-examination, juvenile’s attorney On agree While D.F. observation testimony entirely elicited with leg a stiff consistent combined with the juveniles might informant’s the officer’s examination direct critical to the that he observed walk stiff- 20 263, Robbins, trial court “made 142 stated that sufficient Colo. 350

legged.5 See (reasonable engage from cir in findings inferences to allow to [us] P.2d at 823 of fact tending to discredit or weaken cumstances meaningful and also that appellate review” testimony consid should be uncontradieted suppressing the court’s oral order “[t]he ered). case, appel is the because If such thorough provides a recitation seized cocaine speculate on witness cred late court not regarding of the facts officers’ contact conflicts, evidentiary we as ibility or resolve can Johnson.” 865 P.2d 840. I find with reviewing are unable to consider majority’s support in these eases no credibility determination. trial court’s new rule of fact here. Jordan, 1010, 891 P.2d 1019 People v. See Here, dealing we with it is clear that are (Colo.1995)(Kirshbaum, J., dissenting); Peo incomplete, findings.7 rather than erroneous Medina, P.2d ple v. Colo. supple- majority is therefore forced to (1974).6 1233, 1234 disagree I with therefore findings in ment the trial court’s of fact order majority’s of the characterization officer’s support By doing opposite its conclusion. regarding leg testimony the stiff as “uncon- so, however, majority recognize fails which in fact context tradicted historical place making in proper of the trial court legal clearly ineluctably leads to con and People credibility v. determinations. to that reached the trial opposite clusion (Cоlo.1982) (the Franklin, 645 P.2d de- Maj. op. at 15. court.” credibility of witnesses is a termination Furthermore, majority’s reliance on solely province matter within the of the find- Dracon, People in our decisions fact). The court heard the full er of Johnson, (Colo.1994), testimony not of the officer and did choose to (Colo.1994), misplaced. both P.2d 836 regarding the include the information stiff eases, court made the trial sufficient those Thus, findings. leg part of its findings engage in of fact to enable us testimony not court either did find For example, meaningful appellate review. credible, in which we de- case should Dracon, only in held that “the district we determination, Franklin, fer see supported com- of fact are in P.2d at or it considered that factor its ... petent in evidence the record White, analysis under Alabama v. in which legal stan- applied district court the correct could that the trial court case we determine custodial inter- rеsolving dard issue of a matter of law. erred as Moreover, rogations.” un- P.2d at 718. Dracon, videotape of a like where our review interrogation ... “view[] of an allowed us IV. conduct,” maj. op.

the officer’s demeanor relying on a here not are we A. record, but, reading Furthermore, compelled I am to note that so, doing we are not able to review Officer that, disagree majority’s I assertion and conduct” on the Murawski’s “demeanor Johnson, Similarly, analyzing of an in- witness we when the reasonableness stand. that, cross-examination, including leg findings, stiff 5. The on fact record reveals regard- necessarily that his observation the trial court found officer's tes- officer admitted ing timony leg to be credible. See id. the stiff had not been included either police report his or in the written statement was, fact, during precedent regarding However, majority sets revealed for first time 7.The forth hearing. unsupported findings. testimоny at erroneous or we faced here a situation where the are not with not, however, suggesting "clearly I that the non- trial court's erroneous” am necessarily implies unsupported by” the pivotal “inconsistent with or evi- inclusion of fact maj. dentiary /Wood, Maj. op. (citing op. the trial court found it incredible. See record. at 14 M.D.C. Mortimer, Rather, simply noting at 14. am because Inc. v. 866 P.2d Quezada, (Colo.1994); People the determination of whether this was con- (Colo. Thus, 1987)). contrary sugges stitutionally permissible testimony, to the turns dealing majority, tion we are not here must be certain of how the trial court re- Likewise, however, conclusion of law that sub ceived it. Xdo not believe it an erroneous . by reviewing imply ject majority court. is correct for the correction (1980), vestigatory stop, poten- tip of the ... “the level content of the was substantial danger great to be that it tial revealed considered.” in contained a deal [is] of detail— Maj. op. holding, majority e.g., time, at In place, personal 16. so observation of the vehicle, misconstrues the term “content” include in the plate license and, potential doing, danger Moreover, level of so number of the vehicle. to the effectively lowers the constitutional standard extent that those contain case dictum which determining of in- suggests the reasonableness an presence that the possible of a fire- vestigatory stop upon the nature based of the investigative alone stop, arm mandates an I alleged by anonymous tipster. crime hope would that will decline to follow them. view, my support there is no for this approach unique to Fourth Amendment anal- Although recognize join I in the seri- ysis in jurisprudence. our Alabama v. public concern regarding safety, ous I cannot White, Supreme noted that “[rea- Court that, agree response, in apply we must our cause, suspicion, probable sonable like is de- analysis Fourth Amendment on an ad hoc upon pendent both the ‍​​​‌​‌​​​‌​​​‌​‌​‌‌‌​‌‌​​‌‌‌‌‌​​​‌‌‌‌‌​‌‌‌​​‌‌​​‍content of information basis, assessing potential each time harm by police degree possessed and its of reliabil- inaction, thereby an justifying of officer’s an White, ity.” U.S. S.Ct. plainly otherwise unconstitutional In- defines its Court use of deed, majority reads the Fourth Amend- by saying the term “content” that “[b]oth say right ment that of people “the quantity quality [factors] factors — —are in persons against be secure ... unrea- that ... into account when sonable searches and seizures shall not be evaluating suspi- whether there reasonable violated, except involving in circumstances added). Thus, (emphasis cion.” Id. its fear, gun.” result, prey Such a I will fall to a tip, reference to the “content” of the slippery slope exceptions, effectively evis- any referring respect Court nоt in to the cerating body our law surrounding reported, majority nature the crime as the Fourth stops. Amendment and implies, but solely was instead concerned reason, disagree portion For that I with that quantity, specificity or the majority’s opinion part contained in II provided. information pages 15-16. Likewise, I persuasive do not find the ma

jority’s citation to several out-of-state cases B. that, regardless it imply which reads to Lastly, finally or the existence of I case is note this re- and, suspicion, police today, any officer’s inves solved what we do event, stop may “justified tigatory [because] be must be returned the trial court for significant involve proceedings. majority’s alternatives such cases further While the Maj. op. risk.” at 16. cases cited it expedient, fact rule is also works to majority distinguishable. example, possible For avoid one of the results that two McClinnhan, One, pursuant my analysis: States v. occur Unitеd F.2d could if (D.C.Cir.1981), concludes, remand, 502-03 the court noted trial court on that the “every sig stiff-legged was corroborated officer’s as to the walk detail,” credible, nificant the officer’s it then must vacate its earlier foundation,” “objective order, previously suppressed had and that the the evidence [the n will admissible, officers had a “reasonable be and the matter would Similarly, Two, if proceed defendant] armed.” to trial. the trial court con- Smithers, 322, 326, cludes, remand, Ill.Dec. Ill.2d that the officer’s testimo- (1980), ny incredible, 415 N.E.2d court found its order stand and the suppressed. sufficient articulable facts create a reason remain It is evidence majority belief that an had Having able offense been latter avoids. people to be complete about committed and were confidence that the trial court can And, danger being significant work harmed. State v. its without effort or the ne- Kuahuia, cessity hearing, conducting Haw. I am com- ibility and controls conclusion of witness Because we outcome. either

fortable with fact, “key” of law. legally operative on a are focused decision, and it re- because ultimate our agree although I with the ma- Accordingly, having right, prefer lates to fundamental ruling jority should findings explicit. make the trial court reversed, view, empowered my we are not provides that ev- by or conve- key Fourth Amendment uncontradicted against un- ... “be secure and therefore

ery citizen shall to make factual nience To the and seizures.” trial court for further reasonable searches remand would violates this constitutional findings. the state extent magistrate neutral independent,

promise, the illegally obtained evi-

prohibiting use of by which we vindicate is means

dence always rights. I have fundamental

these rights, as these to understand

come any original in our docu-

fundamental certainly not

ments, are to remain inviolate — judicial economy expe- cast aside be The PEOPLE of the State places me diency. It this conviction is Colorado, Petitioner, how a remand for fact loss as to credibility dan- upon witness dependent City County COURT, DISTRICT justice in the context ger “the interests Judges Thereof, Denver, and One of Maj. op. at 14- interlocutory appeal.” of an Hoffman, Respon B. Honorable Morris dents. end, forget, we lest we before us rights of accused vindicate the No. 96SA468. illegal- every citizen who those of but Colorado, Supreme Court of who, upon police but ly stopped by the En Banc. produce fails to intrusion evidence, incriminating weapon or other 24, 1997. Feb. upon to When called charged or tried. never rights, the stakes vindicate fundamental view, Thus, my pro- when we alter

high. sake, unnec- we reduce expediency’s

cess by govern- security promised

essarily the Fourth Amendment. through

ment

V. sum, my it is view that from record us, cannot tell the trial whether

before leg, stiff the factor of the

court considered so, had if effect consideration what of law findings of fact and conclusions

on its investigatory stop. In the ab-

regarding the findings of fact of sufficient

sence concerning legally significant cir-

cumstance under which made, function appellate our of D.F. was by insufficient

is hindered. When confronted court, ‍​​​‌​‌​​​‌​​​‌​‌​‌‌‌​‌‌​​‌‌‌‌‌​​​‌‌‌‌‌​‌‌‌​​‌‌​​‍inappropriate it supplement

for an key, oper-

record with its own resolution of necessarily the cred- fact which rests on

ative

Case Details

Case Name: People v. in the Interest of D.F.

Court Name: Supreme Court of Colorado

Date Published: Feb 18, 1997

Citation: 933 P.2d 9

Docket Number: 96SA217

Court Abbreviation: Colo.