Summary
holding that the Fourth Amendment requires particular description of items in a warrant to ensure that the proper items are taken in a search
Summary of this case from People v. PittsOpinion
No. 26383
Decided July 1, 1974.
Interlocutory appeal by the People from an order of the district court granting defendant's motion to suppress certain evidence.
Reversed
1. ARREST — Limited Stop — Field Investigation — Less Than Probable Cause. Officers may make a limited stop in the nature of a field investigation on less than probable cause.
2. Detention for Questioning. In order to lawfully detain an individual for questioning, (1) the officer must have a reasonable suspicion that the individual has committed, or is about to commit a crime; (2) the purpose of the detention must be reasonable; and (3) the character of the detention must be reasonable when considered in light of the purpose.
3. Limited Detention — Brief Interrogation — Narcotics — Reasonable Belief — Crime. Where officers had information that narcotics were being sold on premises just exited by defendant; they observed him jump from the porch, disappear momentarily from sight, reappear and enter a car and drive off, held, since this information and conduct gave rise to a reasonable belief that defendant had committed or was about to commit a crime, the officers were therefore justified in stopping him for a brief interrogation, and the limited intrusion of a brief, on the street, stop was justified under the circumstances of this case.
4. DRUGS AND DRUGGISTS — Balloons — Heroin — Stoppage — Brief Investigation — Plain View — Seizure — Proper. Where almost immediately after defendant was justifiedly stopped for a brief interrogation, police officer observed what he believed to be balloons filled with heroin popped into plain view on front seat of automobile, held, since officer was about to engage in a valid Stone field investigation, he could legitimately seize these items which were in "plain view."
Interlocutory Appeal from the District Court of the City and County of Denver, Honorable Mitchel B. Johns, Judge.
Dale Tooley, District Attorney, Second Judicial District, Brooke Wunnicke, Chief Appellate Deputy, Duff Mullen (Howard M.), Assistant, for plaintiff-appellant.
No appearance for defendant-appellee.
This is an interlocutory appeal brought by the People pursuant to C.A.R. 4.1 from an order of the Denver District Court granting defendant's motion to suppress certain evidence. We reverse.
The evidence presented at the suppression hearing is as follows: On May 24, 1971, Officers Fugate and Fitzgibbons of the Denver Police Department were conducting a surveillance of a residence at 3859 Osage Street in Denver. They were operating in tandem at this time with Detective Frazzini who had obtained a "no knock" search warrant for the premises at 3859 Osage Street earlier that day. The officers had information through an informant that the defendant had been selling narcotics from the above address, and that drugs had in fact been seen on the premises the previous day by the informant. All three of the officers had conducted sporadic surveillance of the premises over the previous ten days to two weeks and had personally observed known narcotics users entering and leaving the premises.
Shortly after 1:00 p.m., Officers Fugate and Fitzgibbons began observing the premises from their parked car through binoculars. Detective Frazzini had positioned himself so as to be able to observe the rear of the premises. Shortly after 1:00 p.m. a car pulled up to the front of the house. A woman and small child exited the car and went into the home. The officers made radio contact and determined to execute the search warrant as someone was in the house.
As Officers Fugate and Fitzgibbons were approaching the house, Officer Fugate observed the defendant come out of the house onto the front porch, jump over the porch railing, disappear momentarily, and jump back onto the porch. The defendant then looked up and down the street and walked to the car that had just driven up, got in and drove away.
The officers again made radio contact and Frazzini ordered the other officers to stop the defendant. Shortly thereafter, Officers Fugate and Fitzgibbons stopped defendant's car. Officer Fitzgibbons approached defendant's car from the driver's side, and Officer Fugate approached the car from the passenger side. Fugate observed defendant's hand jammed into the crack between the back and the bench of the front seat as he approached the vehicle. Shortly thereafter, when the defendant was exiting his car, he removed his hand from the crack and Fugate saw several balloons containing what he believed to be heroin pop up and roll onto the seat. Fugate opened the door of the car and seized the balloons. At this point the defendant was placed under arrest and advised of his rights.
[1,2] A recent series of decisions of this court commencing with Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971), and culminating with People v. Stevens, 183 Colo. 399, 517 P.2d 1336 (1973), have held that officers may make a limited stop in the nature of a field investigation on less than probable cause. The test for such a field investigation was set out in Stone, supra:
"In order lawfully to detain an individual for questioning, (1) the officer must have a reasonable suspicion that the individual has committed, or is about to commit a crime; (2) the purpose of the detention must be reasonable; and (3) the character of the detention must be reasonable when considered in light of the purpose." 174 Colo. 504, 509.
In People v. Stevens, supra, we noted that the constitutional basis for an arrest or a stop does not depend upon the label given such police activity.
"These labels are merely a shorthand way of describing different degrees of intrusions on Fourth Amendment rights of privacy and should not be confused with the underlying analysis in deciding whether the particular intrusion was justified under the circumstances." 517 P.2d 1336, 1339. (Citations omitted.)
[3] We hold that the stop and limited detention in this case comes within the Stone guidelines. The officers had information that narcotics were being sold on the premises just exited by the defendant. They observed him jump from the porch, disappear momentarily from sight, reappear and enter a car and drive off. This information and conduct gave rise to a reasonable belief that the defendant had committed or was about to commit a crime. Thus, the officers were justified in stopping him for a brief interrogation. The limited intrusion of a brief, on the street, stop was justified under the circumstances of this case. People v. Stevens, supra.
[4] Almost immediately after the defendant was stopped, Officer Fugate observed what he believed to be balloons filled with heroin pop into plain view on the front seat of the vehicle. Since Fugate was about to engage in a valid Stone field investigation, he could legitimately seize these items which were in "plain view." Avalos v. People, 179 Colo. 88, 498 P.2d 1141 (1972); People v. Gurule, 175 Colo. 512, 488 P.2d 889 (1971); Stone v. People, supra. Accordingly, it was error to grant defendant's motion to suppress.
The order of the district court is reversed and the cause remanded for further proceedings consonant with the views expressed herein.
MR. CHIEF JUSTICE PRINGLE and MR. JUSTICE GROVES concur in the result only.
MR. JUSTICE ERICKSON dissents.