People v. TriplettPeople v. Triplett
Douglas K. Wilson, Colorado State Public Defender, Nathaniel E. Deakins, Deputy State Public Defender, Denver, Colorado, for Defendant-Aрpellant
Division VI
Opinion by JUDGE FREYRE
Bernard and Booras, JJ., concur
Defendant, Jason Lee Triplett, appeals the judgment of conviction entered on a jury verdict finding him guilty of one count of possession of a controlled substance (methamphetamine). He argues that the trial court erred when it denied his motion to suppress the methamphetamine found on his person during a pat-down search. We agree and, therefore, reverse the judgment and remand for a new trial.
I. Background
Late one night, two uniformed Denver police officers were on routine patrol in a marked patrol car near the intersection of Colfax Avenue and Pennsylvania Street. While stopped at a traffic light, they saw Triplett and a woman standing on the sidewalk. Both officers saw Triplett “fiddling” with an object in his hands. Triplеtt then saw the officers and “quickly” or “immediately” put the object in his pocket and walked away.
Finding this behavior “suspicious,” the officers turned their car around, parked, and followed Triplett on foot. One officer testified that the Pennsylvania and Cоlfax area is a high crime area
The officer in frоnt of Triplett asked what he had put in his pocket. Triplett replied, “nothing.” The officer testified that Triplett appeared nervous, his “chest was breathing heavily,” and he “kept trying to put his hands into his pockets.” The officer asked Triplett to keeр his hands out of his pockets and asked again what Triplett had put in his pocket. Triplett again replied, “nothing.”
The officer then asked Triplett if he could “search his person for anything illegal.” Triplett said, “no.” The officer then told Triplett that he was going to “pat him down for weapons for [officer] safety.” During the pat-down, the officer felt a “hard, small object” in Triplett‘s pocket. The officer asked what the object was. Triplett responded that it was “meth.” The officer then searched thе pocket and recovered a small baggie of methamphetamine. Triplett was arrested and charged with one count of possession of a controlled substance.
Triplett moved to suppress the methamphetamine, arguing that the officers lacked the reasonable suspicion of criminal activity
At trial, a jury found Triplett guilty of possession of a controlled substance. The trial court sentenced him to eighteen months of probation.
II. Suppression of Evidence
Triplett argues that the trial court erred in denying his motion to suppress the methamphetamine because the officer lacked the reasonable suspicion that he was armed and dangerous necessary to justify a pat-down search for weapons under Terry v. Ohio, 392 U.S. 1 (1968). We agree.
A trial court‘s ruling on a motion to suppress presents a mixed question of faсt and law. People v. Glick, 250 P.3d 578, 582 (Colo. 2011). We defer to the trial court‘s findings of fact if they are supported by the record, but we review its legal conclusions de novo. People v. Brunsting, 2013 CO 55, ¶ 15. “Our focus is whether the trial court‘s legal conclusions are supported by the relevant circumstances.” People v. Perez, 2014 COA 112, ¶ 12.
B. Governing Law
The United States and Colorado Constitutions protect against “unreasonable searches and seizures.”
One such exception, first set forth in Terry, allows an officer to “stop and frisk” a person when he has a reasonable, articulable suspicion that (1) the person “is committing, has committed, or is about to commit a crime,” and (2) the person is “armed and dangerous.” People v. Rushdoony, 97 P.3d 338, 341-42 (Colo. App. 2004); see also
Not all interactions between police and citizens, however, involve a “search” or a “seizure.” See People v. Marujo, 192 P.3d 1003, 1006 (Colo. 2008). Our case law identifies three general categories of police-citizen interactions: (1) consensual encounters; (2) investigatory stops; and (3) arrests. People v. Archuleta, 2014 CO 31, ¶ 7.
A consensual encounter does not trigger Fourth Amendment protections. Id. at 1006. An encounter is consensual “when no restraint of the liberty of the citizen is implied; as long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person‘s liberty or privаcy.” People v. Thomas, 839 P.2d 1174, 1177 (Colo. 1992). A consensual encounter is “not transformed into an investigatory stop because an officer asks for identification,” id., “asks for consent to search,” People v. Walters, 249 P.3d 1139, 1143 (Colo. 2011), or asks “non-offensive questions,” Marujo, 192 P.3d at 1006.
However, once a police officer conducts a pat-down search for weapons, the encounter is no longer consensual. Terry, 392 U.S. at 19 (stating that “it is nothing less than sheer torture of the English language to suggest that a [pat-down search]... is a ‘consensual’ encounter“); see also United States v. King, 990 F.2d 1552, 1558 (10th Cir. 1993) (“The Fourth Amendment is
To justify a pat-down searсh for weapons during an investigatory stop or a consensual encounter, the officer must have a reasonable suspicion that the person is “armed and dangerous.” Terry, 392 U.S. at 27; Perez, ¶ 13; People v. Ratcliff, 778 P.2d 1371, 1376-77 (Colo. 1989). To determine whether an officer had reasonable suspicion tо conduct a pat-down, we consider the “totality of the circumstances.” People v. Reyes, 2014 CO 8, ¶ 11. The officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the search. Terry, 392 U.S. at 21.
A “reasonable suspicion” is more than a “hunch,” id., but is a less demanding standard than “probable cause.” Alabama v. White, 496 U.S. 325, 330 (1990). The question is “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27; Ratcliff, 778 P.2d at 1377.
C. Analysis
The trial court found that the encounter was consensual until the point that the officer рat-down Triplett. Triplett does not challenge this finding on appeal. Accordingly, we address whether,
The trial court based its reasonable suspicion finding on several factors: (1) Triplett‘s “fiddling” with an object; (2) his “nervous” behavior; (3) his “constant” attempts to put his hands in his pockets; (4) the late hour of the encounter; and (5) the “high crime” area. We addrеss each factor in turn.
1. Fiddling with an Object
The officers testified that they saw Triplett “fiddling” with a small object in his hands before he put it into his pocket and walked away. One officer testified that “the way he was manipulating it with both hands... made me believe that it was something [he] didn‘t want the police to see.” However, the officer also testified that he did not see the object and did not know what it was. He further testified that the object did not “look like a weapon.”
While “furtive gestures” may be a relevant circumstance, they must be “coupled with other factors” to support reasonable suspicion. People v. Thomas, 660 P.2d 1272, 1275 (Colo. 1983), overruled on other grounds by People v. Archuleta, 2014 CO 31. Here, Triplett‘s act of putting a small, non-weapon-like object into his pocket and walking away upon
2. Nervous Behavior
The officer testified that Triplett appeared nervous and was breathing heavily. The trial court found this behavior relevant to its reasonable suspicion finding.
The Colorado Supreme Court has repeatedly held that “nervousness,” even when combined with other factors, is “of limited value” and is not enough to support a finding of reasonable suspicion. Reyes, ¶ 15; see also People v. Goessl, 186 Colo. 208, 211, 526 P.2d 664, 665 (1974) (“Nеrvousness is a normal reaction to any police-citizen encounter.“); People v. Haley, 41 P.3d 666, 675 (Colo. 2001) (“Nervousness is a common and natural response to an interaction with a law enforcement officer.“).
3. Hands in Pockets
The trial court also relied on the fact that Triplett “constantly” tried to put his hands in his pockets after being asked not to do so. The officer testified that he found this “very concerning” for his safety. We agree that a person‘s refusal to keep his hands out of his pockets can be a significant factоr in a reasonable suspicion analysis. See Ratcliff, 778 P.2d at 1378 (finding it significant
However, we must consider this factor in the context of the entire encounter. Triplett was not being stoppеd for a crime. The trial court found that the encounter was “consensual.” In a consensual encounter, a person “remains free to disregard the questions and walk away.” Thomas, 839 P.2d at 1177. It follows that in a consensual encounter, a person should also bе free to put his hands in his pockets, especially when it is late at night and cold outside.1 See Marujo, 192 P.3d at 1008 (noting that the defendant “was free to... put his hands in his pockets” during a consensual encounter).
The officer testified that Triplett “kept trying to put his hands into his pockets.” But the officer did not testify that Triplett made any “menacing” or “threatening” movements. Cf. Ratcliff, 778 P.2d at 1378 (finding reasonable suspicion where the officer saw a “visible bulge” in the defendant‘s pocket and the defendant refused to remove his hand). Nor did the officer testify that he saw any “bulges” that could have been a weapon. To the contrary, the officer testified that the object he saw Triplett put in his pocket did not look like a weapon.
The trial court also relied on the fact that the encounter occurred “late at night” in a “high crime area.” While these factors are relevant, they cannot, by themselves, justify a pat-down search. Reyes, ¶ 12. “Our cases have repeatedly noted that being in a high-crime area does not, without more, justify an investigatory stop.” Marujo, 192 P.3d at 1009. This is even more true for a pat-down search for weapons. See Perez, ¶ 25 (finding that being in a high crime area “does not support a reasonable suspicion that a particular person is armed and dangerous“).
5. Totality of the Circumstances
Considering the totality of the circumstances, we conclude that the officer lacked a reasonable suspicion that Triplett was armed and dangerous. At the point the officer announced the pat-down search, he knew the following: (1) Triplett was in a high crime area late at night; (2) he had “fiddled” with a small, non-weapon-like objеct and put it in his pocket; (3) he appeared nervous and was breathing heavily; and (4) he repeatedly tried to put his hands in his pockets during a consensual encounter.
These facts, taken together, do not support a “reasonable bеlief that [the officer‘s] safety or that of others was in danger.” Terry, 392 U.S. at 27. Many of these factors—nervousness, being in a high crime
Because the pat-down search was not justified by reasonable suspicion, it was an unreasonable search under the Fourth Amendment. The methamphetamine recovered as a result of that search was “fruit of the poisonous tree” and should have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 488 (1963). Because the methamphetamine was the only evidence supporting Triplett‘s conviction, its admission was not harmless beyond a reasonable doubt. See Perez, ¶ 43.
III. Conclusion
The judgment is reversed, and the case is remanded for a new trial.
JUDGE BERNARD and JUDGE BOORAS concur.