No. 02CA0160.Colorado Court of Appeals.
August 14, 2003 Certiorari Denied March 8, 2004.
Dolores County District Court No. 00CR11; Honorable Sharon L. Hansen, Judge.
JUDGMENT AFFIRMED.
Page 572
Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Robert J. Mulhern, Telluride, Colorado; Robert Unruh, Telluride, Colorado, for Defendant-Appellant.
Division V.
Opinion by JUDGE ROTHENBERG.
[1] Defendant, Stephen Corbin Roth, appeals the judgment of conviction entered upon a jury verdict finding him guilty of unlawful possession of drug paraphernalia. He challenges the trial court’s pretrial ruling denying his motion to suppress evidence obtained as the result of an allegedly unlawful search of his car. We affirm. [2] After a hearing on defendant’s motion to suppress, the trial court found the following. Police officers, acting with the intent to interdict persons transporting drugs to a music festival, posted large signs on a road statingPage 573
“Narcotics Checkpoint, One Mile Ahead” and “Narcotics Canine Ahead.” The signs were part of an elaborate ruse because there was no checkpoint or other impediment to the free flow of traffic. The purpose of the signs was to allow police officers, dressed in camouflage clothing and hidden on a nearby hill, to monitor the reactions of persons traveling past the signs.
[3] One of the officers watching the section of road near the signs (the first officer) testified that he saw a passenger in defendant’s car toss a small item out of the window onto the side of the road. The officer radioed another police officer farther down the road, provided him with a description of defendant’s car, and described the littering violation committed by the passenger. [4] A police officer stationed farther down the road (the second officer) flagged defendant down and directed him to pull into a campground area. The second officer informed defendant that he had been stopped because his passenger had been seen throwing an object from the car. Defendant told the officer the passenger had discarded a beverage can. The officer asked defendant for his license and registration which defendant provided. [5] Approximately one minute later, the first officer radioed the second officer and informed him he had retrieved the item the passenger had thrown from defendant’s car, and it was a pipe containing residue suspected to be marijuana. [6] The second officer asked for permission to search defendant’s car, but defendant refused. Nevertheless, the officer searched the car and discovered a marijuana pipe and some psilocybin mushrooms. When defendant asked the officer to retrieve an item from his backpack, the officer searched the backpack and discovered another marijuana pipe. [7] The trial court found that the police officers who testified were credible and denied defendant’s motion. At trial, defendant was acquitted of the unlawful possession of mushrooms. I.
[8] Defendant first contends the fictitious checkpoint violated the protections against unreasonable searches and seizures of the federal and state constitutions. We disagree.
A.
[9] A drug checkpoint in which vehicles are stopped without reasonable suspicion that the occupants have engaged in criminal activity constitutes illegal police conduct in violation of the Fourth Amendment Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333
(2000).
Page 574
942 (Colo.App. 1996) (“Although deception by the police is not condoned by the courts, the limited use of ruses is supported by the overwhelming weight of authority.”).
[14] The Flynn court reasoned that the stop there was based on the individualized suspicion of illegal activity, and therefore was distinguishable from that in Indianapolis v. Edmond, supra. [15] Defendant relies on Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d (1990); and United States v.Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). In both cases, the Supreme Court upheld the use of police roadblocks or checkpoints to examine motorists for their sobriety and immigration status, respectively, but the Court analyzed the constitutionality of the checkpoints using a balancing test articulated in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). [16] Defendant maintains that the balancing test used in Martinez-Fuerte,Brown, and Sitz should have been used by the trial court in this case, and that if the court had done so, it would have been required to grant his motion to suppress. We disagree the balancing test applies where, as here, the stop by the police was not random, but was based on an individualized suspicion of criminal activity. [17] Brown v. Texas, supra, was not a checkpoint case. There, the defendant was convicted of violating a Texas statute making it a crime for a person to refuse to identify himself or herself to a peace officer who made a lawful stop and requested such information. The United States Supreme Court held the detention of the defendant was unreasonable because the police lacked a reasonable suspicion that he was involved in any criminal activity. [18] Citing Martinez-Fuerte, the Court in Brown v. Texas, supra, explained the need for a balancing test where the defendant is challenging the reasonableness of a seizure that is less intrusive than a traditional arrest. The Court stated that “[c]onsideration of the constitutionality of such seizures [should involve] a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Brown v. Texas, supra, 443 U.S. at 50, 99 S.Ct. at 2641, 61 L.Ed.2d at 361 (cites omitted). [19] In contrast to Brown v. Texas, supra, where the police had no evidence of any criminal activity, the police here observed defendant’s passenger commit the offense of littering. This offense, while minor, justified the police in stopping defendant’s car. See § 18-4-511(1), (4), C.R.S. 2002 (“Any person who deposits, throws, or leaves any litter on any public or private property . . . commits [the class two petty offense of] littering”). [20] In Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502(1983), police set up a routine license checkpoint. When the defendant was stopped and asked for his license, a police officer shined his flashlight into the car and saw small plastic vials and quantities of loose white powder later determined to be heroin. The Supreme Court upheld the search under the plain view doctrine. It did not discuss the constitutionality of the checkpoint. Thus, to the extent defendant here also relies on Texas v. Brown, supra, we conclude it is inapposite. [21] We are persuaded the analysis in United States v. Flynn, supra, is appropriate, and the court there did not reference the balancing test set forth in Martinez-Fuerte, Brown, or Sitz. We therefore conclude the use of the fictitious drug checkpoint here did not violate defendant’s rights under the Fourth Amendment because the stop of his car by police was based on their individualized suspicion of unlawful activity.
B.
[22] Relying solely on his Fourth Amendment argument, defendant also contends the fictitious drug checkpoint violated his federal rights of due process, equal protection, privacy, and travel. But he does not offer any separate analysis to support these claims.
Page 575
C.
[24] Defendant next contends his rights under the Colorado Constitution were violated, and the motion to suppress should have been granted on that basis. We disagree.
Amendment. Sections 16-3-102 (probable cause necessary for an arrest), 16-3-103 (reasonable suspicion necessary for an investigative detention), 16-3-110 (authority of officer to act when a felony or misdemeanor is committed in the officer’s presence), C.R.S. 2002. [31] Accordingly, we reject defendant’s contention that the trial court erred in denying his motion to suppress and rejecting his argument based on the state constitution.
II.
[32] Defendant next contends the police officers did not have a lawful basis to stop and search his vehicle. Again, we disagree.
(Colo. 2002). [34] “Probable cause to arrest exists when, under the totality of the circumstances at the time of arrest, the objective facts and circumstances available to a reasonably cautious officer at the time of arrest justify the belief that an offense has been or is being committed by the person arrested.” People v. King, 16 P.3d 807, 813 (Colo. 2001). [35] We reject defendant’s assertion that the trial court incorrectly resolved certain conflicts in the suppression hearing evidence. To the contrary, we conclude the record adequately supports the trial court’s findings of fact, and based on those findings about the officer’s observations, the officers had probable cause to believe the passenger in defendant’s car had committed the petty offense of littering. Section 18-4-511(1), (4), C.R.S. 2002. [36] The trial court accepted as credible the officers’ testimony that, almost immediately after the stop, they learned from another officer that the item discarded by the passenger was drug paraphernalia with burnt
Page 576
residue suspected to be marijuana. See People v. Taylor, 41 P.3d 681
(Colo. 2002) (where police officers possess probable cause to arrest a passenger in a vehicle, they may stop the vehicle in order to effect an arrest of the passenger); People v. Washington, 865 P.2d 145 (Colo. 1994) (the “fellow officer” rule provides that an arresting officer who does not personally possess sufficient information to constitute probable cause may nevertheless make a warrantless arrest if he or she acts upon the direction or as a result of a communication from a fellow officer, and the police, as a whole, possess sufficient information to constitute probable cause).