People v. King

JUSTICE BENDER delivered the opinion of the court.

[44] JUSTICE COATS, dissenting.

[45] In these two cases, the court finds that police officers were not justified in physically restraining, with handcuffs and drawn guns, two suspects whose car they stopped while driving away, at night, from a box canyon in which a substantial cultivation of marijuana was being kept under surveillance. The court holds first, that the police lacked probable cause to support an arrest and second, that the use of such force exceeded the limits of an investigatory stop. Because I disagree on both counts, I respectfully dissent.

[46] Since warrants are not constitutionally required for seizures of the person outside the home, even an arrest of the defendants would have been justified by probable cause. ,423 U.S. 411,423(1976). Probable cause to arrest exists when the facts and circumstances known to the arresting officer are sufficient to warrant the belief by a reasonable and prudent person, in light of that person's training and experience, that an offense has been committed and the defendant committed it. ,925 P.2d 758,762(Colo. 1996); ,793 P.2d 1173,1175(Colo. 1990); ,696 P.2d 293,296(Colo. 1985); ,380 U.S. 102,108-09(1965). Probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and probable cause involves probabilities similar to the factual and practical questions of everyday life upon which reasonable and prudent persons act. ,925 P.2d at 762; ,793 P.2d at 1175; ,696 P.2d at 296.Page 818Probable cause is clearly a matter of common sense, not mathematical probability. ,696 P.2d at 296; ,442 U.S. 200,213(1979).

[47] Probable cause is also an objective standard. ,665 P.2d 113,117(Colo. 1983); Wayne R. LaFave, § 3.2(b) (3d ed. 1996 Supp. 2001). It includes an exploration into the totality of the circumstances known to the officers at the time of the arrest, ,925 P.2d at 762; ,865 P.2d 145,147(Colo. 1994), but the existence of probable cause does not depend upon the subjective conclusions of the officer. ,460 U.S. 491,507(1983) (officer's belief that he lacked probable cause for an arrest does not prevent the court from later finding probable cause); ,665 P.2d at 117; LaFave, . While determining what was known to the police is largely a matter of historical fact subject to a clear error standard of review, the ultimate determination whether that information amounts to probable cause or reasonable suspicion is treated as a question of law, subject to de novo review. ,963 P.2d 1095,1103(Colo. 1998) (citing ,517 U.S. 690,699(1996)).

[48] With regard to the crime itself, the police not only had probable cause to believe that illegal cultivation of marijuana was being committed; they were virtually certain of it. Unlike situations in which the police are forced to rely on reports of questionable reliability, here the police had first-hand knowledge of the crime. They had witnessed the systematic cultivation of marijuana, divided into as many as eleven separate plots, containing more than 200 separate plants. While viewing the fields themselves was overwhelming evidence of the deliberate cultivation of marijuana, in addition, through videotape surveillance cameras they had actually witnessed two men, tending the individual plants, at night by flashlight.⁸As to the commission of a crime, therefore, there could be no serious doubt.

[49] With regard to the involvement of the defendants in the crime, the police investigation had also discovered information amounting to probable cause. This was not a case of an arrest based on a general description. Attention had focused on the defendants well before the night they were arrested. The police had discovered an airline luggage tag bearing the name of defendant Gulick among the plots of marijuana while stationing a surveillance camera and had subsequently identified Gulick's current address through the telephone directory. The officers had already learned about defendant King's blue Nissan truck, and Officers Buffington and Bennett had actually spoken with King at Gulick's residence, with the vehicle parked in front. Furthermore, the officers had viewed a surveillance-camera videotape showing two men, one of whom had long, light-colored hair, moving among the marijuana plants at night with flashlights.

[50] When Agent Bennett watched the two men, who had the physical characteristics of Gulick and King, including long, light-colored hair on one of them, emerge from the canyonPage 819at night with flashlights and get into the blue Nissan truck that he already knew belonged to King, only the most minimal logical inferences were required for him to believe that the two men were Gulick and King; that they had returned to the marijuana plots at night when they were not likely to be seen; and therefore that they were involved in the cultivation of the marijuana. Besides the relatively limited number of innocent explanations for anyone's presence at that location under those circumstances, these inferences were supported by Bennett's awareness that Gulick (or at least his name tag) previously had been physically present among the marijuana plants; that Gulick had a very recent friendship or association with King; and that sometime within the prior three nights, two men, who from general appearances could well have been Gulick and King, had been shining flashlights among the marijuana plants at night. This evidence was not only sufficient to cause reasonable and prudent people to act on the belief that the defendants were involved in the marijuana cultivation; it was powerful circumstantial evidence of their guilt.

[51] To establish a link between the defendants and the crime sufficient to justify an arrest, the majority would require not only direct evidence of their presence in the marijuana fields but also additional evidence to prove their intent and rebut potential defenses they might raise. maj. op. at 16-20. Probable cause to arrest does not mean proof sufficient to convict. ,865 P.2d 145,148(Colo. 1994). It does not even require the absence of innocent explanations for the conduct. LaFave, , § 3.2(e) at 69-70 ("The mere fact that `innocent explanations for the activity may be imagined' is not enough to defeat the probable cause showing, and there is probable cause if a `succession of superficially innocent events had proceeded to the point where a prudent man could say to himself that an innocent course of conduct was substantially less likely than a criminal one.'") (citations omitted); ,960 P.2d 1164,1171(Colo. 1998). It is a practical, nontechnical conception, measured by reasonableness, that represents a necessary accommodation between the individual's right to liberty and the State's duty to control crime. ,420 U.S. 103,111-12(1975); ,725 P.2d 1142,1146(Colo. 1986). The holding in this case appears to require not only sufficient evidence to reach a jury but virtual certainty of conviction before an initial arrest can be made.

[52] However, even if these circumstances could be legally characterized as amounting to no more than reasonable suspicion, rather than as probable cause, I would find that the actions of the police did not exceed those reasonably designed to protect their safety during the seizure. Although the Supreme Court has never spelled out the precise characteristics that distinguish an investigatory stop from an arrest, "[t]he trend developing since has been to include within the rubric of investigatory stops in some circumstances `the use of handcuffs, the placing of suspects in police cruisers, the drawing of weapons and other measures of force more traditionally associated with arrest than with investigatory detention.'" ,980 P.2d 509,513(Colo. 1999) (citations omitted).

[53] Today the court holds that "when officers use force typically associated with an arrest — such as the drawing of weapons, physical restraint, and the use of handcuffs — the encounter may be characterized as an investigatory stop only when specific facts or circumstances exist that render the use of such force a reasonable precaution for the protection and safety of the officers." Maj. op. at 1. If this holding were intended to suggest that police officers must have information that the suspect is armed at the time of the stop, or has been armed in similar situations in the past, it would be a substantial departure from existing precedent. ,392 U.S. 1,27(1968) (an officer is entitled to draw reasonable inferences, in light of his training and experience, in deciding to conduct a pat-down for weapons during a stop); ,980 P.2d at 513-514(approving drawn gun during investigatory stop on grounds that unknown person had fled from approaching officer and might be hiding in dark room). Among the most commonPage 820grounds for taking protective action in executing a stop are the nature and seriousness of the crime of which the person being stopped is suspected. ,767 P.2d 1201,1205(Colo. 1989) (citing ,809 F.2d 108(1st Cir. 1987), . ,482 U.S. 916(1987), and recognizing that "firearms are tools of the trade" in the drug world, justifying extra precautionary measures to ensure police safety); ,209 F.3d 931,938(10th Cir. 2000) (recognizing that officer's limited knowledge that individual was suspected of drug trafficking could provide reasonable suspicion that suspect was armed and dangerous.); ,981 F.2d 1216,1221(11th Cir. 1993) (acknowledging that drug dealing is known to be extremely violent, and holding that stop of suspected drug dealers did not become arrest merely because agents drew their guns); ,983 F.2d 598,602-03(4th Cir. 1993) (proper for police to draw guns incident to investigatory stop of suspected drug dealers), ,890 F.2d 1363,1369(7th Cir. 1989) (same); ,732 F.2d 1102,1106(2d Cir. 1984) (investigatory stop with guns drawn was reasonable where officers suspected large-scale marijuana trafficking, a type of crime known to often involve weapons, individual matched general description of known suspect, and stop was conducted at night, in isolated area).

[54] Here, although the police had no report that the suspects were currently armed and dangerous or that they had prior gun-related convictions, neither did the police act merely on general suspicions that the suspects might be engaged in some kind of criminal activity. The police had positive, first-hand knowledge that a serious drug felony was being committed in the canyon. At the time of the seizure, they not only had grounds to suspect the defendants of committing that offense but in light of the timing and location of the seizure, they also knew that the suspects would know the reason they were being stopped, possibly with incriminating evidence in the car and on their persons. In addition to the darkness and secluded nature of the area and the notorious dangerousness of approaching a stopped vehicle, ,109 F.3d 976,978(4th Cir. 1997); ,15 F.3d 654,657n. 2 (7th Cir. 1994); ,899 P.2d 325,331(Colo.App. 1995), the officers knew that they were stopping men for a crime punishable by substantial prison sentences and involving the loss of substantial amounts of money. Under these particular circumstances, the officers had every reason to anticipate that they would encounter armed resistance.

[55] The primary, if not sole, purpose of the Fourth Amendment exclusionary rule is to modify or deter undesirable behavior of executive branch officers. ,468 U.S. 897,916(1984); ,695 P.2d 1146,1152(Colo. 1985) (Erickson, C.J., concurring). Suppressing evidence as the result of an illegal stop necessarily implies that the police should have acted differently. Given the strength of the evidence and the seriousness of the offense being committed in this case, I would not require the officers either to let the suspects go without even attempting a stop, or require them to approach the suspects' car without taking protective action for their own safety. Limited protective action upon initial contact, while more intrusive, does not change the time of detention, movement, or search limitations imposed upon investigatory stops or fundamentally erode the distinction between a stop and an arrest.

[56] Because I do not believe the seizure of the defendants violated the Fourth Amendment's prohibition against unreasonable seizures, I would reverse the suppression order of the district court.

[57] I am authorized to state that JUSTICE RICE joins in this dissent.Page 821