People v. Stevens

399 States, F.2d Carlo v. United 286 the arrest. See States, United Taglavore 262, Williamsv. United F.2d 291 States, 418 F.2d 159.” the arrest the court in its conclusion that

We affirm delay a pretext the search. There had been a mere for year the occurrence of facts which between more than arrest warrant and the issuance of the basis for an formed give delay duty upon People Such casts warrant. satisfactory explanation lapse of time for when justification People seek to use the arrest warrant as a holding allegedly to the arrest. This was the search incidental James, (6th 1967), of United States 378 F.2d 88 Cir. delay unexplained 3 months. there had been an where 1/2 United by the court above and States See the cases cited trial Harris, 1963). (6th F.2d Cir. necessary argued. questions to reach the other It not Ruling affirmed.

No. 25483 Nancy State of Colorado v. Ann Stevens (517 1336) P.2d Rehearing January Decided December 1973. denied 1974. Attorney General, Moore, Dunbar, John P. Duke W. Sorenson, plaintiff-appellee. Deputy, Assistant, for David A. Rogers, Defender, MacFarlane, Rollie R. State Public J. D. Deputy, Deputy, Lundquist, Wallace Michael Dut- Chief T. ton, Deputy, Welch, Deputy, defendant-appel- Dorian E. for lant.

En Banc. opinion of PRINGLE delivered the

MR. JUSTICE CHIEF the Court. of conviction Stevens, appeals from her Ann

Nancy 1963, 48-5-2, violation marijuana, C.R.S. of possession statute, Supp., Perm. C.R.S. the contraband 40-7-58(2). to as defendant. She will be referred January 18, p.m. 12:45 approximately

At parked their child, another woman defendant, her infant State Peniten- the Colorado parking lot outside auto in grounds on the public restroom located tiary. They entered adjacent parking Defendant’s lot. park car, restroom, and then returned to their companion left looking gate penitentiary, back in the of the proceeded to and her child left the the restroom. Defendant direction of penitentiary. entered the restroom, the car and then went to guard’s suspicion activities aroused watch tower These day during a cold cold weather visitors because it was normally penitentiary rather than use the restroom inside the immediately that the park. requested He the restroom in person to leave be searched. Defendant was the last restroom party the restroom. before the search entered the restroom marijuana bags suspected in the The search uncovered six wastepaper This conducted between 12:45 basket. search was day, approximately p.m. At 1:00 each inmate p.m. and 1:00 park. crews maintain investigator compan- apprehended defendant and her

An lobby penitentiary and took them to the ion in the rights, Miranda conference room. He advised them of their they possession under arrest and told them were marijuana bringing penitentiary prop- contraband onto shortly erty. companion absolved Defendant thereafter her illegal left any part from activities and admitted that she marijuana had in the restroom as an inmate instructed to do. counts, charged and she

Defendant was with the two filed first, suppress two her statements to the motions: investigator grounds involuntarily they were obtained, second, and the to dismiss the contraband violation grounds delegation power on the that it entailed an invalid applicable and was not to her. The trial court denied both motions. guilty court, on both was found defendant

At a trial to by the new trial denied motion for Defendant’s counts. court. trial (1) in trial court erred contends the appeal,

On defendant on the admitting defendant’s ’statements into evidence probable cause to show grounds failed (2) arrest, denying motion to defendant’s defendant’s do not find merit count. We dismiss the contraband therefore, judgment and, affirm defendant’s contentions trial court.

I. set aside argues be that both convictions should Defendant probable She arrested cause. she was without because subsequent with all statements were tainted contends that into arrest and should not have been admitted the unlawful evidence. right (A) her to raise

People argue that defendant waived appeal of her failure to raise the issue on because this (B) closing argument, even illegality if of the arrest until court, the properly before this record establishes issue the reasons discussed cause for arrest. For below, we choose to reach the merits of defendant’s contention.

A. only pre-trial suppress motion raised Defendant’s trial, At were when the statements issue of voluntariness. again objected evidence, to their as defendant offered specifically trial court asked for defendant to admission. The objection. again Defense raised the basis counsel state objection was overruled and only the voluntariness issue. During closing the confession was introduced into evidence. argument, raised for the first time the issue of defendant allegedly argued that from the unlawful arrest. She taint produced at trial did not show cause for evidence objection should The trial court stated that arrest. People’s at the close of case so that there have been raised opportunity have been an for more evidence would legality conducting introduced on the arrest. the Without evidentiary hearing, an as on to it had earlier motions argument suppress, court the heard the issue ruled probable arrest, and, therefore, that there was cause the for properly the were into confessions admitted evidence. discretionary power The trial court has the 41(e). suppression entertain motion at trial. Crim. P. If the suppression trial elects to rule on a at court motion raised trial, appellate an court should not consider the matter waived unless it can be shown that trial court abused its ruling discretion on the motion. merits In the case, the instant trial court chose to rule on the motion even though untimely. Nevertheless, it was since court was the fact, ruling admissibility trier of the belated on the of the prejudice did People. confessions not either or defendant Thus, we that hold it was within the trial court’s discretion motion; therefore, rule on the we do not consider the issue out, pointed separate evidentiary waived. As we have no hearing surrounding on the circumstances the arrest was held However, necessary at the time of trial. it is not to remand evidentiary hearing this case disposition for because of our on the cause issue.

B. To determine whether defendant’s Fourth Amendment rights violated, were we first the apprehension examine of the companion defendant. defendant and her were in the lobby visitors’ penitentiary prison when a official requested accompany them to him to a conference room where he confronted them contraband, with the and asked explain them to their actions.

We have held that a temporary police detention in investigation” justified nature “field can be less than Marquez, cause for arrest. 183 Colo. Avalos, 231, 1134;People 516P.2d 179 Colo. 498 P.2d Gurule, 1141; People 889;Stone 175 Colo. 488 P.2d v. People, Comment, 485 P.2d 495. An Problems, Analytical Model Stop Frisk 43 Colo. L. (1971). investigation” Rev. 201 true It is that the “field present in proceed cases the extent this the cited did not Stone, case. In we said: (1) questioning, lawfully to detain an individual-for

“In order suspicion have reasonable the officer must (2) commit, crime; committed, has or is about to individual (3) reasonable; purpose of the detention must be of the reasonable when consid- character detention must be light purpose.” ered in of the officers here fall within

We feel actions Stone, temporary we hold that rules of announced including investigation is questioning some detention for field are proper where the Stone tests met. argues police that characterized since the

Defendant arrest, People detention in the conference room as the the whereas, arrest; apprehen to if probable show cause the must something probable, stop, as a less than was characterized sion Baird, See arrest suffice. cause for will Attaching significance labels 112, P.2d 20. such to these merely way a misplaced. labels are shorthand is These describing degrees of Amend different intrusions on Fourth rights privacy ment and should not be confused with the deciding underlying analysis particular the intru in whether LaFave, justified the under circumstances. sion Sibron, Terry, and the “Street Encounters” Constitution: Peters, Beyond, 39, (1968). See 61 Mich. L. Rev. 51-52 1972, 44, ch. also Colo. Sess. Law 39-3-103. § We no hold the Fourth have found cases which that a is requires suspect an officer inform that he Amendment to being “stop” a detained a rather than conventional under fact, In Fourth is invoked when “arrest.” the Amendment regardless by officer seizure occurs the means which the Moreover, supra. Stone v. People, to execute it. there chooses reason the to use different seems to no for executing terminology respective in the In either detentions. case, suspect is of his deprived the the same. The intrusion is psychological effect of to move. The the confronta freedom examined, here, upon suspect the as was done tion labeling hearing. Therefore, the we hold voluntariness that se, not, per require does the detention as an arrest arresting probable had cause to “arrest” the official have consequences defendant with all the that an “arrest” entails. proper inquiry is whether the was reasonable seizure justified at action was which turns on “whether officer’s reasonably inception, scope and whether it was related in its justified to circumstances interference in Ohio, Terry 19-20, place.” 392 U.S. first S.Ct. 1879, 20 905. See also Stone People, supra. L.Ed.2d pointed Schaefer, Justice As out it is “more relevant to restraining ask whether there is cause for believing than to ask whether there is cause guilt.”1 suspect’s Terry analysis, Under Stone we must first determine prison grounds official had whether reasonable waiting lobby in the approach defendant and take her to a questioning. conference room for The official knew that companion guard’s suspi- defendant had aroused cion, suspected that a uncovered shakedown restroom marijuana, suspects and that two had been the last However, prior leave restroom the search. the record many persons does not indicate other how used the restroom morning or when last shakedown occurred. There- fore, support we hold that the record would not the extent justified by probable of an intrusion which would be cause to subjected arrest. But here defendant was an not to such booked, not stationhouse, intrusion. She was taken to the jailed to trial and await until after had she confessed to Rather, crime. official followed of an intermediate course by taking suspect public waiting lobby out action make, said, investigation” as we have “field which was certainly under warranted the circumstances here. As we have held, so often we deal in probabilities this area with which are not technical are but actual practical questions of everyday upon life which prudent reasonable and men act. Baird, People v. fact, 470 P.2d 20. In had the Suspect Society Schaefer, 1W. (1967) questioned they officers not the defendant here would have guilty duty. been of of approve dereliction While we do not taking suspect any necessary engage of further than questioning, this we believe the removal of this from prison lobby was a reasonable and sensible manner to investigate activity. the criminal

Secondly, period must determine we whether the of Shortly was under the detention reasonable circumstances. p.m., lobby after 1:00 taken defendant was from to a conference prison. room in the She then was advised of her rights. Miranda The record indicates that sometime between her advisement and p.m. 1:30 she made a statement implicating clearing companion. herself and appeal, On allege defendant does not that her statement involuntary was nothing and we find record in the which indicates that the period of detention period was for unreasonable of time any purpose or for other question primary than to suspect. Hence, justified we hold that intrusion reasonably was conducted under Therefore, the circumstances. the trial court properly admitted defendant’s statements.

II. Defendant also contends her conviction under the contra- statute, Supp., band Perm. 40-7-58(2), C.R.S. improper. She was convicted following under provision of that statute:

“Any person who attempt shall furnish or any furnish to person confined in the Colorado state . . penitentiary,. any drug, narcotic, medicine, compound, tool, chemical alcoholic beverage, firearm, explosive, deadly weapon, instrument, or personal other item of property charge person place such previously has declared of confinement regulation written posted confinement, place within such a or confinement, within a place division such to be harmful,. . . guilty shall felony. (Emphasis . . added.) argues requiring

Defendant the clause regula- a written posted notice, above, tion underscored modifies each of the enumerated contraband items. She maintains that since

408 with, complied statutory requirements not were the Furthermore, argues that under she should fall. conviction delegates unconstitutionally the statute her construction the executive. power define crime to statutory rule of construction that It is cardinal given legislative effect intent should be ascertained Sneed, possible. People 96, v. 514 P.2d 183 Colo. whenever Lee, 136; 377, v. 776; v. 506 P.2d Cross People 180 Colo. Morgan, 202; People P.2d People, 469, 122 Colo. 79 subject obviously 504, 246 P. Colo. 1024. statute penal in As to control contraband institutions. we enacted statute, legislature proscribed several enumerated read the view, provided the warden In our it further could items. proscribe personal property” as the need “other items clause, Thus, requires a we hold that the arose. valid posted, only regulation phrase to be modifies “other only remaining personal property.” Therefore, items of marijuana is whether is within one of the issue enumerated legislature. specifically proscribed by the items specifically provides that The contraband statute We any is a item. believe “narcotic” contraband marijuana penal clearly prohibit legislature intended to by the of that term. We are aware that use institutions family. marijuana medically speaking is not in the narcotic Legislative 127, No. Research Council Publication Colorado Control, Drugs Drug 3-8, Dangerous pp. Abuse drugs (1967). Nevertheless, legal narcotic definition of (14)(a), cannabis, and, C.R.S. 48-5-1 Colorado includes commonly marijuana. course, People cannabis known as is Stark, 400 P.2d 923. We believe 157 Colo. this attempt an inmate that an furnish with sufficient notice marijuana is violation of contraband statute. Young, 339 P.d 672.

Accordingly, judgment court is affirmed. trial specially MR. LEE JUSTICE GROVES and JUSTICE MR. concur. JUSTICE dissents.

MR. ERICKSON concurring: specially MR. LEE JUSTICE disagree, however, I result. I concur in the with the reasons majority opinion. as set forth in view, investigator my when the took the defendant In to room, door, locked the of conference advised her her — rights, investigator under arrest told her she was as the — effectively placed testified he did the defendant was under a temporary arrest. This was more than detention for questioning.

The critical determination then is whether there was probable justify agree I cause to the arrest. with the trial probable court’s determination that there was cause for the arrest. Willyard Officer A.

Correctional Daniel testified he was posted gate at Tower 1 near the front awith clear view of the day, watching restroom. It was visitation and he was carefully. parking restroom lot suspicion His was aroused companion, when he first noticed defendant’s and then daughter, restroom, proceed defendant and her leave the to gate. their car and then walk to the front Defendant’s com- looking panion appeared suspic- a manner was back in thought looking Willyard ious. Officer that she was yet gang who had not come out to the inmates site. day, ordinarily wishing

It was a cold visitors to use proceeded restroom facilities directly would have into the prison reception Willyard room. Officer ordered a therefore shakedown of produced the restroom. The search what baggies marijuana. appeared to be of penitentiary setting

This was a where, commonly as is known, smuggled of reaching risk contraband inmates is present. regulations prison ever Posted prohibited such activity. Willyard’s duty Officer keep eye was to parking visitors in the and restroom areas. In view these circumstances, and the officer’s -observation of defendant and companion, it not was unreasonable for him to that an offense had been or was about to be committed. A Gallegos check the restroom suspicion. verified his In 173, 401 P.2d this Court said: People, “ Stacey early as as ‘Probable cause’ defined Emery, 642, 645, U.S. 24 L.Ed. as a reasonable ground supported by sufficiently suspicion, circumstances strong man to believe that an offense to warrant cautious being person has been or is committed arrested. See Vague also, People, supra. suspicion Gonzales v. does not rise * * *” dignity cause. foregoing gave All the circumstances rise to more than a “vague suspicion.” necessary

It is fundamental that it is not that the facts and necessary support finding circumstances guilt beyond cause be sufficient establish a reasonable believe, Here, judge, did doubt. I as the trial that the facts and circumstances were sufficient warrant cautious prison to believe the defendant had official committed an justify offense which would her arrest. say joins

I am MR. authorized JUSTICE GROVES specially concurring opinion. in this dissenting: MR. JUSTICE ERICKSON respectfully I dissent. my view, majority opinion ignores

In the well- established procedures law arrest and the which have been designed guarantee that a genuinely confession is volun- tary product and not the of a will overborne. body precedent

A vast rights exists which defines the citizen, as police officers, well as the duties of enforcing History Lasson, the law. and Development the Fourth (1957); Landynski, Amendment Search and Seizure and the Supreme (1966); Ringel, Seizures, Court Searches and Arrests (1972). and Confessions Ohio,

Relying upon Terry primarily 1,88 v. 392 U.S. S.Ct. 1868, 20 (1968), L.Ed.2d 889 implemented as in Colorado People, under Stone 504, v. (1971), P.2d 485 495 majority holds that an may physically individual be police custody detained in in those instances where the suspicion may harbor reasonable activity that criminal

411 Such a probable cause. involved, even in the absence United States contrary every decision of the conclusion scope of Fourth examined the which has Supreme Court Ohio, Terry supra. including v. protection, Amendment Williams, 1921,32 L.Ed.2d 143, U.S. 92 S.Ct. Adams v. 407 York, 102, 90 S.Ct. v. New 396 U.S. (1972); Morales 612 U.S. (1969); Mississippi, v. 394 Davis 299 291, 24 L.Ed.2d (1969); v. New Sibron 1394, L.Ed.2d 676 721, 22 89 S.Ct. York, 1889, 20 40, S.Ct. New 392 U.S. 88 Peters v. York and Ohio, 89, S.Ct. (1968); Beck v. 379 U.S. 85 L.Ed.2d 917 Ohio, 643, v. U.S. 81 223, (1964);Mapp 142 367 13 L.Ed.2d States, (1961); Henry United v. 1684, L.Ed.2d 1081 S.Ct. 6 (1959);Brinegar v. 168,4 134 98, 80 S.Ct. L.Ed.2d 361 U.S. States, 160, 1302, L.Ed. 1879 United 338 U.S. 69 S.Ct. 93 States, 699, (1949); v. United 334 U.S. 68 S.Ct. Trupiano (1948). Coolidge 1229, Hamp- New 92 L.Ed. 1663 shire, (1971); 443, 2022, 403 U.S. S.Ct. 29 L.Ed.2d 564 91 Maroney, 42, 1975, Chambers v. U.S. 90 S.Ct. 26 399 Louisiana, (1970); 30, Vale v. 419 399 U.S. 90 S.Ct. L.Ed.2d California, (1970); Chimel v. 395 U.S. 1969, 26 L.Ed.2d 409 (1969); 2034, Sabbath v. 752, S.Ct. 23 L.Ed.2d 685 89 States, 1755, 585, 20 L.Ed.2d 828 United 391 U.S. 88 S.Ct. Seattle, 541, 1737, (1968); See U.S. 87 S.Ct. 18 387 States, (1967); 347, Katz v. United U.S. 88 L.Ed.2d 943 389 (1967); Hayden, Warden v. 507, L.Ed.2d 576 387 S.Ct. 19 (1967); 294, 1642, Camara v. S.Ct. 18 L.Ed.2d 782 U.S. 87 Court, 523, 1727, 87 S.Ct. 18 L.Ed.2d Municipal 387 U.S. California, (1967); 757, 86 Schmerber v. 384 U.S. S.Ct. 930 Walker, (1966);Linkletter 1826, U.S. 16 L.Ed.2d 908 (1965); 1731, United States v. 618, S.Ct. 14 L.Ed.2d 601 Ventresca, 741, 13 L.Ed.2d 684 380 U.S. 85 S.Ct. States, (1965); S.Ct. Preston v. United 376 U.S. California, 483, (1964); Stoner v. 376 U.S. L.Ed.2d 11 881 California, (1964); Ker v. 374 889, 84 S.Ct. 11 L.Ed.2d 856 Haynes (1963); v. 23, 1623, 83 S.Ct. 10 L.Ed.2d 726 U.S. Washington, 1336, 503, 83 10 L.Ed.2d 513 373 U.S. S.Ct. Illinois, 917, (1963); Lynumn 528, 9 372 U.S. 83 S.Ct. States, (1963); Chapman v. United 365 U.S. L.Ed.2d 922 412

610, 776, 81 S.Ct. 5 L.Ed.2d (1961); 828 Elkins v. United States, 206, 364 U.S. 1437, 80 S.Ct. 4 (1960); L.Ed.2d 1669 States, Draper v. United 307, 358 U.S. 329, 79 S.Ct. 3 States, (1959); L.Ed.2d 327 Miller v. United 301, 357 U.S. 1190, 78 2 (1958);Rochin v. California, S.Ct. L.Ed.2d 1332 165, 342 205, U.S. 72 (1952); S.Ct. 96 L.Ed. 183 United Re, States v. Di 581, 222, 332 U.S. 68 S.Ct. 92 L.Ed. 210 States, (1948); Johnson v. United 10, 367, 333 U.S. 68 S.Ct. States, (1948); 92 L.Ed. 436 McDonald v. United 335 U.S. 451, 191, (1948); 69 S.Ct. 93 L.Ed. 153 Harris v. United States, 145, 1098, 331 U.S. 67 S.Ct. (1947); 91 L.Ed. 1399 States, Importing Go-Bart Co. v. United 344, 282 U.S. 51 153, (1931); States, S.Ct. 75 L.Ed. 374 Carroll v. United 267 132,45 280, U.S. (1925); S.Ct. 69 L.Ed. 543 Amos v. United States, 313, 255 U.S. 266, 41 S.Ct. (1921); 65 L.Ed. 654 States, Silverthorne Lumber Co. v. United 385, 251 U.S. 40 182, (1920). S.Ct. 64 L.Ed. 319 reasoning Under the of the majority opinion, constitu- rights may ignored tional guise under the of what loosely investigation.” referred to as a “field Although I concurred in Stone People, 504, 485 P.2d 495 (1971), hope right with the interrogate for a purpose, limited which we decision, created in that would abused, not be but suggest later I was forced to that we went too far Gurule, when we established the Stone area. (1971).1 Colo. 488 P.2d 889 majority 1The standard for arrest and detention laid down in the grants opinion police greater discretionary power much than has yet by any major group been recommended research which has subject. Pre-Arraignment examined the See ALI Model Code of Procedure, 110.2(l)(a) (Official 1972) Draft No. § Uniform 2(1); generally, Warner, Act, Act, and Arrest Arrest § Uniform (1942); Appellate Decisions; 28 Va. Proper L. Rev. Arizona Investigatory Stops: Test, (1973). Grounds A 15 Ariz. L. Rev. Moreover, goes beyond the standard enunciated in this decision what legislature the Colorado minimum to be has stated standard for legislature arrest and detention. See C.R.S. 39-2-20. The has not overlooked the difficult situations which confront on occasion.

413 Federal, hinges not only case disposition of this The relating to provisions on Colorado constitutional also but Const, Const., IV; II, 25. art. U.S. amend. Colo. § arrest. right of the involving questions the constitutional Serious against compelled protection of and to counsel assistance involved, not been but have are also self-incrimination before the record is of the state of addressed because Arizona, 436, 1602, 16 86 Miranda 384 U.S. S.Ct. us. Illinois, 478, U.S. (1966), Escobedo v. 378 694 and L.Ed.2d Illinois, Lynumn (1964); 1758, 84 S.Ct. 12 L.Ed.2d 977 supra. closely are exam the record

When the facts revealed Supreme binding precedent of the ined, applicability of facts, my in of the United States becomes obvious. The Court arrested, unlawfully mind, establish that the defendant was involuntary product arrest was an and that 2 confession. I.

Facts A and her infant child went to the child’s mother visit Penitentiary State accom- father at Colorado and were neighbor. panied by entering penitentiary, they Before adjacent public park restroom the used women’s in procedures specific statutorily fact, they provided have sanctioned In interrogation and in the absence cause. C.R.S. for detention p. also, 1963, 39-3-103, 198. Laws 39-2-3.See C.R.S. majority, by validating case and officers’ conduct in this The ignored comply 1963, 39-2-3, have the clear failure to with their C.R.S. legislature effect, judicially and, in have C.R.S. intent of the amended way drastically minimum 39-2-20 in as lower the such for arrest detention. standard Remington, Controlling Judge’s Role the Police: The 2See LaFave Decisions, Making Reviewing Rev. Law Mich. L. 63 Enforcement (1963); Note, Practices and the Destruction Police Threatened 987 Evidence, (1971); Cook, 84 L. Rev. 1465 Probable Cause Harv. Arrest, (1971); 24 Vand. Rev. 317 Evolution the Police L. Officer’s Colorado, Right to Arrest Without a Warrant Den. L. J. (1966). neighbor prison. out, The went in first after came she neighbor mother and child went in. The made backward glance single toward restroom and that act aroused the suspicion penitentiary guard. guard of a ordered that a marijuana search be made the restroom and was found in a nothing waste There basket. in the record that establishes many people how other used restroom before the trio entered and the search conducted. was At the time of the defendant, search, son, shakedown the her infant and the neighbor waiting penitentiary were inside of the to see the child’s father. marijuana found, assigned

After the was officer sheriff’s placed to the penitentiary women both under arrest. There- after, they upstairs interrogation taken to were an room and rights They locked inside. were read an advisement form interrogation marijuana and commenced. The which was brought in, found in restroom the both the neighbor they defendant were asked what knew knowledge any about it. women Both denied marijuana. interrogation, After additional defendant said neighbor nothing that her was innocent and knew about the marijuana. neighbor The was then allowed to leave room. requested leniency ultimately The defendant confessed charged. to the crimes disputed

It is not that the confession which defendant sought suppress key to at the prosecution’s trial is the case. No evidence is contained in the record which would probable establish cause proof to arrest not to mention beyond a reasonable required convict, doubt which is to apart from the confession.

II. Probable Cause for the Arrest statutory authority The which allows Colorado law en- felony forcement officers make arrests without warrant is restricted to offenses are “in committed their presence,” or “where a offense criminal has in fact been committed, ground and he [the has officer] reasonable person to believe to be arrested has committed it.” occasions, C.R.S. 39-2-20. On a number of this court equated grounds probable has “reasonable to believe” with Marquez People, cause. 168 Colo. 450 P.2d 349 Enlow, (1969); Johnson v. P.2d 132 Colo. (1955). imposed statute reflects the standard Colorado upon all the Fourth Amendment to the United states States Constitution which commands that no warrants for an except “upon or a shall probable arrest search issue cause supported by . particularly describing or . . oath affirmation place searched, things persons to be and the or Accord, Const., II, seized.” Colo. art. 25. It axiomatic § judge impartial arrest that when cannot issue an warrant requisite cause, policeman without in the investigation” may greater course of a “field not exercise having grounds power arrest without first reasonable Wong specific believe has committed a crime. States, Moreno, supra; People Sun v. United (1971). 488,491 P.2d 575

History discloses that at time the Fourth Amendment Constitution, part became American courts were already striving to define cause. Early decisions held or report, suspicion, that common rumor “strong or even suspect” reason to would not to satisfy suffice the burden of establishing Commonwealth, probable cause. Conner v. 3 (Pa.) (1810). cause, Binn. 38 Probable as a limitation on the right firmly arrest to make an is now in entrenched American justice right and pillar criminal is a of privacy our and freedom from unlawful restraints. Six Bivens v. Unknown Agents Narcotics, Named Federal Bureau 403 U.S. of Geltson, (1972); S.Ct. 91 29 L.Ed.2d v. 619 Lankford (4th 1966); Rights 364 Dellinger, F.2d 197 Cir. and Of Sword, Remedies: The Constitution aAs Harv. 85 L. Rev. (1972). give I am any meaning If history safeguards, behind our constitutional I cannot condone an suspicion recognize arrest mere and still the existence of the Fourth required Amendment. The amount evidence establish cause does not rise to the level evidence States, required Brinegar guilt. to establish v. supra; United States, good However, faith on the supra. United v. Draper or serve as arresting will not suffice part officer States, Henry supra. United probable cause. v. substitute known to the facts circumstances cause exists if Probable reasonable, believing prudent inman warrant a the officer is committed and that offense has been that the Stacey Emery, U.S. 24 L.Ed. 1035 v. responsible. (1878). knowledge case, only this presented the facts

Under at possessed the time the defendant prison official which the entered, (1) and short was that the defendant was detained left, park public in a near the ladies’ restroom time later (2) marijuana found in was later penitentiary, police did majority opinion concedes that the The restroom. or when defendant was arrested not have cause interrogation only Not do and taken room. detained into probable cause, I doubt that a fail to establish but the facts (or officer) prudent reasonable, man would consider suspicious. even the defendant’s acts were that Amendment, the Fourth the defendant was As I view very deprived at the arrested moment she was liberty and taken another room movement into States, Henry United prison supra. v. Evidence official. incriminating subsequently discovered or statements which subsequently justify are made cannot relate back arrest which is unlawful when made. Johnson United States, States, Wong Henry supra; v. United supra; Sun v. States, Moreno, supra; supra. People United stated, the reasons I the defendant’s For have arrest was by probable not, my opinion, supported requires cause and suppressed. the defendant’s confession Beto, Moreno, (5th 1965); supra; Collins v. 348 F.2d 823 Cir. States, States, Wong supra; Henry United Sun v. v. United supra.

III. Stop Exception and Frisk One of the most basic constitutional rules is that “searches judicial process, prior outside conducted without judge magistrate, per or approval by a are se unreasonable Coolidge Hampshire, New under Fourth Amendment.” v. subject only is supra. This fundamental rule a few specifically-established exceptions. and well-delineated These exceptions “jealously carefully drawn,” are and and there showing by exemption” must be “a those who seek exigent police circumstances forced to act without upon seeking warrant. The burden those exemption rests to show the need for it.

Coolidge Ohio, Hampshire, supra, New Terry supra, cases, York, companion supra, and its Sibron v. New York, supra, Peters Newv. were the in first decisions which police “stop constitutional of difficulties and frisk” investigatory practices, conducted without the existence of probable cause, York, were See examined. v. New Morales supra. The trilogy of stringently cases held under certain specifically circumstances, persons suspected limited of may activity criminal be stopped, weapons frisked for momentarily interrogated by police officers, though even there is less than cause to arrest. Stone v. People, supra.

“Terry . . . a police was intended to free officer from the rigidity anything of a prevent doing rule that would his to a reasonably [person] suspected being of about or commit just violence, having committed crime no matter how grave the problem impelling or the need action, for swift had unless officer what a would court later determine to for be cause arrest. It was meant serious danger recently cases harm perpetrated or imminent persons, not conventional ones possessory offenses.” Terry Ohio, supra. [Emphasis added.] Terry police decision did not hold that whenever suspicion person engaging officer has a hunch or that a any type activity, detain, he may stop, criminal interrogate suspect. Rather, it held that if officers interrogate citizen, they chose to stop and frisk or must specific reasonably have facts from which can it be inferred is, been, very that the has engaged or is soon to dangerous. See and is armed and a crime the commission Williams, Terry recognized opinion The in supra. Adams may require enforcement encounters law that on-the-street strong evidence, on the basis of to act at times an officer activity criminal cause, which indicates that short armed the criminal place and that has taken clear, unequivocally dangerous. opinion The court’s of the not intended however, the outcome decision was of the prior pronouncements court a retreat from the be must, practicable, obtain police whenever advance that the through judicial approval of and seizures warrant searches recognizing procedure. the realities of difficult situations In face, Supreme occasion Court policemen equitable rule an balance between which struck fashioned physical safety rights of the individual and our law personnel. enforcement majority’s reasoning ignores indisput- in this case

The States, Supreme fact that Court the United able Ohio, Terry supra, begrudgingly accepted necessity exception creating requirements the warrant Constitution, United Fourth Amendment States if this case as intrusions into an individual’s treats warrantless rule, constitutionally protected security were the rather than “narrowly majority exception. drawn” decision Terry carefully struck balance embodied abandons right secure between a citizen’s to be from intrusions government’s law responsibility and the for effective enforce- ment.

Accordingly, I that the would order defendant’s confession suppressed her conviction reversed.

Case Details

Case Name: People v. Stevens

Court Name: Supreme Court of Colorado

Date Published: Dec 31, 1973

Citation: 517 P.2d 1336

Docket Number: 25483

Court Abbreviation: Colo.