*1 No. 26383 Montoya v. Chris Melvin the State of Colorado (524 76) July 1, 1974. Decided *2 Attorney, Tooley, District, District Dale Second Judicial Wunnicke, Deputy, Duff Appellate Brooke Chief Mullen (Howard M.), Assistant, plaintiff-appellant. for appearance defendant-appellee. for
No opinion MR. JUSTICE delivered KELLEY Court. interlocutory appeal brought by
This is an pursuant 4.1 an order to C.A.R. from Denver District granting suppress Court defendant’s motion to certain evi- dence. We reverse. presented
The
suppression hearing
at
is as
May 24, 1971,
Fugate
Fitzgibbons
follows: On
Officers
and
Department
conducting
Police
the Denver
were
a surveil-
Osage
lance of a
at
They
residence
Street
Denver.
operating
were
in tandem at this time with Detective Frazzini
who had
obtained
“no knock” search warrant for the
premises
Osage
day.
at
Street earlier
officers
through
had information
an informant
defendant
selling
address,
had been
narcotics from the above
and that
drugs
premises
fact
previous day
had in
been seen on the
by the informant. All three of the officers had conducted
sporadic
premises
previous
surveillance of the
over the
ten
days
personally
to two weeks and had
observed known
entering
leaving
premises.
narcotics users
and
Shortly
p.m.,
Fugate
1:00
Fitzgibbons
after
Officers
and
began observing
premises
parked
from
through
their
car
positioned
binoculars. Detective
had
Frazzini
himself so as to
premises. Shortly
able to observe the rear of the
after 1:00
p.m.
pulled up
a car
the front
A
house. woman and
small child exited the car and went
home.
into the
execute the
determined to
radio contact
officers made
the house.
as someone was
search warrant
approaching the
Fitzgibbons
Fugate
were
As Officers
come out of
Fugate
the defendant
observed
house, Officer
railing,
porch
jump over
porch,
the front
house onto
porch. The
jump
momentarily,
back onto
disappear
the street and walked
up and down
then looked
got
away.
in and drove
just
up,
driven
had
the car that
and Frazzini ordered
again
radio contact
made
The officers
thereafter,
Shortly
defendant.
officers to
the other
Fitzgibbons
car.
stopped defendant’s
Fugate and
Officers
car from the
defendant’s
Fitzgibbons approached
Fugate
car from the
approached the
side,
driver’s
and Officer
jammed
Fugate
hand
observed defendant’s
passenger side.
of the front
the back and the bench
the crack between
into
thereafter,
Shortley
the vehicle.
when
approached
seat as he
exiting
car,
hand from
he removed his
the defendant was
containing
Fugate
what
saw several balloons
the crack and
Fugate
seat.
pop up and roll onto the
to be heroin
believed
*3
seized the balloons. At this
door of the car and
opened the
placed under arrest and advised
was
point
the defendant
rights.
of this court commenc
A
series of decisions
recent
People,
Stone
174 Colo.
We hold that the and limited detention in this guidelines. Stone case comes within the The officers had being information that premises narcotics were sold on the just They exited the defendant. jump observed him from porch, disappear momentarily sight, reappear from enter a car and drive off. This gave information and conduct rise to a reasonable belief that the defendant had committed or was about Thus, to commit a crime. the officers were justified stopping interrogation. him for a brief The limited brief, street, intrusion of a on Stevens, circumstances of this case. immediately
Almost after the stopped, defendant was Fugate observed what believed to be balloons pop plain filled heroin into with view the front seat of the Fugate engage vehicle. Since about in a Stone valid investigation, legitimately field he could seize these items “plain which were in Avalos view.” 179 Colo. Gurule, People v. 512,488 175 Colo. Stone People, supra. Accordingly, it was grant error to suppress. defendant’s motion to order the district court is reversed and the cause proceedings remanded for further consonant with the views expressed herein.
MR. CHIEF JUSTICE PRINGLE and MR. JUSTICE GROVES concur only. in the result
MR. JUSTICE ERICKSON dissents. MR. concurring JUSTICE GROVES in the result:
I concur in the result for the same reason that I so Stevens, concurred in 517 P.2d *4 viz.: there that was cause to arrest and, therefore, justified. the detention was dissenting: MR. JUSTICE ERICKSON respectfully dissent. justifies majority opinion stop the initial Montoya investigative stop upon defendant as an based suspicion committed, reasonable individual has or is commit, crime, coming a about to and thus within permissible police “Stone” area of See Stone conduct. To intrusion, particular point officer must be able to specific which, together and articulable facts taken with facts, reasonably the rational inferences from those warrant intrusion. suppression Yet the record of the hearing any fails to suspicion part disclose on the committed, officers that the defendant had or commit, was about to stopped crime at the time he was his automobile.1
Indeed, of Detective Frazzini shows that it merely the fact of the search warrant caused officers to the defendant some blocks house.2 from the Consequently, relying “specific the officers were not or articulable facts” which would amount to a reasonable justify stopping driving as he was 1“Q. Fugate, why you stop Montoya? Mr. Frazzini, “A. directions Detective we were instructed to the vehicle. “Q. violating any For no other He time, wasn’t reason? law at that he? suspected leaving possibly We “A. with our evidence. “Q. violating any Excuse me. Was he law at that time? No, sir, he “A. wasn’t. “Q. carrying anything Was he the time he left [at house] ? that, I don’t know “A. sir. “Q. anything see You didn’t in his hands? No, “A. sir.” 2 “THE WITNESS: If I didn’t have the warrant for the reason for stop, got heroin, I wouldn’t have stopped because we wouldn’t have driving street, depended him based on down the and I on this other information. “Q. Do I understand that this warrant was addressed to the automobile person Montoya? and the of Chris No, We house, “A. sir. had warrant for the He house. left the and I didn’t know if vehicle, he had the heroin on him or in his or in the ”—house *5 Terry of supra. It because automobile. that . . the contraband the trial court found authority purported pursuant and under the was taken position of the warrant, consequence the State and as the has to fall.” depends upon
Whether the seizure was
whether
justified
inception.
at its
the officers’ action was
hearing,
suppression
prosecution
the
At
sought
solely upon
the seizure
the balloons
grounds
held a valid search warrant. The
support
Montoya’s
the search of
car or the
warrant cannot
of the balloons. The search warrant had the word
seizure
only
dwelling
“person”
specified
crossed out and
house
object
as the
the search. The Fourth Amendment
“particularly”
per
requirement
“the
that warrants
describe
things
prevent
son or
to be seized” is intended to
the seizure
thing
describing
of one
under a warrant
another. As to what
taken, nothing
is to be
is left to the discretion of the officer
Coolidge
executing
See
New Hampshire,
the warrant.
2022,
443,
S.Ct.
Once
the “Stone area”
this court defined as
which
Terry
implementation
supra,
of
has been
an
original
expanded
beyond
my dissenting
See
scope.
far
its
Stevens,
opinions
People v.
183
P.2d
Colo.
1336
People Marquez,
183 Colo.
In an with which I has through court an been transformed into a monster this beyond the kind of the “Stone area” far expansion background of police-citizen that form the encounters Terry and the warrantless intrusion into a doctrine LeFave, See “Street and the privacy. Encounters” citizen’s Peters, Sibron, Terry, Beyond, and Mich. Constitution: L. (1968). By merely rewording applying and Rev. Stone, ignoring reasoning language while decisions, majority supports evades the those which reconciling situations under responsibility of different fact Thus, analysis. same structural wide latitude Terry-Stone principle, at application of the while ostensibly reaffirming quite test same restrictive for time invoking principle I delineated in Stone. cannot which we unjustifiable court’s extension of concur in the wholesale containing Stone. Nor do think the seizure the balloons “plain doctrine. The heroin can view” only thing plain view were balloons themselves. The plain contents the time of seizure were not in view. The at themselves, items, balloons, by nor not contraband were were they presumptive possession giving of contraband Olson, cause arrest. pipe held a seizure court of water clip led to the arrest
roach which for marijuana possession of to be unreasonable because these *7 arrest, probable notwith- could not furnish cause to items standing expert of a narcotics items paraphenalia.” Although as “narcotics were classifiable presence might of the balloons in the have been a automobile circumstance, suspicious mere will Olson, Nanes, supra; People v. arrest. warrantless 294, (1971); Falgout 483 174 P.2d 958 170 Colo. 32, 459 P.2d 572 attempted presence to raise arguing cause the level of balloons to through experience, police, have learned that heroin often argument properly balloons. A similar carried inside Remers rejected Supreme in by the Court California
307
Court,
11,
Rptr. 659, 470 P.2d
87 Cal.
Superior
Cal.3d
knowledge and
special
officer relied
an
where
drugs
packaged in tinfoil
dangerous
are often
experience that
defendant. The
seizing
package from the
a tinfoil
a man
seizure unreasonable because
held that
court
California
special
caution,”
possessing this
knowl
even
of “reasonable
assuming
a tinfoil
edge,
would not
drugs.
legality
of the search and
package
contain
will
subjective
by the
beliefs
affected
seizure is not
Cady v.
very
officers, except under
limited circumstances.
Dombrowski,
433,
2523,
States,
41, 54 S.Ct.