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Part I – Understanding Colorado Criminal Law – Questions and Answers About the Authority of Colorado Police and Law Enforcement – Seizures of Persons – The STOP of a Suspect

by Colorado Criminal Defense Lawyer – for the Defense of Those Charged with Crimes in Colorado

My goal here is to assist the average interested person in Colorado to understand the enforcement of Colorado Criminal law and procedure.

This effort will be in FIVE PARTS – This first part is the most basic and addresses certain definitions of terms commonly used by Colorado Law Enforcement and then proceeds to laws and procedures that focus primarily on the seizure of the person.

There are certain fundamentals that must be understood in this area:

What is an Arrest?

An arrest occurs when a citizen is taken into custody by a law enforcement officer’s significant restraint of the citizen’s freedom to leave. An arrest must be based upon probable cause to believe that a crime has occurred, and that the citizen committed it. If the citizen is issued a summons, it is considered to be a “non-custodial” arrest. If the citizen is taken to jail, it is considered to be “custodial” arrest.

What is a law enforcement Contact?

A “contact” is a consensual encounter between a law enforcement officer and a citizen. It is only consensual if there is no show of force, assertion of authority, or interference with the citizen’s ability to leave. The court test is whether a reasonable person in that situation would have felt free to ignore the officer and leave. An officer needs no level of suspicion to conduct a contact.

As long as the encounter is consensual, there is no need to give Miranda warnings because there is no “custody.” The officer must let the citizen walk away if he so chooses. If the officer uses a show of force, assertion of authority, or interferes with the citizen’s ability to leave, any statements or evidence obtained will be suppressed as the fruit an illegal “stop” or “arrest” if the officer did not have reasonable suspicion or probable cause.

What is a legal Frisk?

A frisk is a “patting down,” or external feeling of clothing to assure that the suspect is not carrying any type of weapon. A stopped suspect may be frisked only if there are articulable officer safety concerns.

If, during the external pat-down, the officer feels an object that might be a weapon, the officer may reach into the clothing to remove that object and examine it to ensure that it is not a possible weapon.

Evidence of a crime is not seizable during a frisk unless the police officer had valid consent to remove it, or it was in an item that the police officer had a right to retrieve and inspect as a possible weapon. (So, an item that feels like a possible baggie of marijuana, cannot be retrieved without consent because there is no indication that it might be, or contain, a possible weapon).

What is Probable Cause?

Probable cause to believe that a certain situation exists requires more facts and more certainty than “reasonable suspicion.” A law enforcement officer must be able to articulate facts that would lead a neutral independent magistrate to conclude that, under the totality of the circumstances, there is a “fair probability” that a citizen committed a crime (or, for purposes of a search, that sizeable items are currently located inside certain premises). The officer can rely upon his/her own observations, information from other persons, and his/her training and experience, in articulating probable cause. If the information is obtained from another person, the officer must:

(1) show facts indicating how the source obtained the information. (This is usually accomplished by stating, for example, that “the informant saw” or “was told,” etc. If this information is unknown, it may be inferred that the informant had personal knowledge if the information is very specific and detailed);

(2) show facts which indicate that the source of the information is reliable (Informant is an identified citizen, a fellow officer, has made statements against his penal interest, or has furnished reliable information in the past); and,

(3) Independently corroborate all (or portions of) the information received from other persons, to ensure its reliability and credibility. (Corroboration may cure deficiencies in the information received from other persons. The amount of required corroboration varies with the facts in each case. Highly detailed information from a credible source may require very little corroboration; whereas, information from an anonymous source may require such extensive corroboration that the corroboration itself establishes probable cause.

What does Reasonable Suspicion of Involvement in Criminal Activity mean?

Reasonable suspicion is a “particularized and objective basis for suspecting that a citizen is involved in criminal activity.” A law enforcement officer must be able to articulate facts that indicate a reasonable suspicion of involvement in criminal activity. The officer can rely upon his/her own observations, information from other persons, and his/her training and experience, in articulating reasonable suspicion.

What is a Search?

A search is an intrusive examination by a police officer of a citizen’s person or his property. It is any act that intrudes upon a citizen’s reasonable expectation of privacy. A search is governed by the Fourth Amendment and therefore must be reasonable. A search can occur by the use of any of the senses: seeing, hearing, smelling or feeling.

The U. S. Supreme Court, in a case involving the warrantless squeezing of a piece of luggage, held that there was a difference between “visual” and “tactile” observation. In deciding the reasonableness of a search, it ruled that a “tactile” inspection is more physically invasive than a “visual” inspection, and therefore requires a higher level of justification.

Unless the circumstances justify a warrantless search under one of the court-created warrant exceptions, a search is only reasonable if it is conducted pursuant to a search warrant. To obtain a search warrant, there must be probable cause to believe a crime has been committed, and probable cause to believe that evidence of that crime is currently inside the place to be searched.

What are Seizable Items?

A. Persons (People themselves)

1. Pursuant to an arrest based upon probable cause; or

2. Pursuant to an arrest warrant; or

3. Pursuant to a stop based upon reasonable suspicion, or

4. Pursuant to a Rule 41.1 order for non- testimonial identification.

B. Property

1. Which is stolen or embezzled; or

2. Which is designed or intended for use as a means of committing a criminal offense; or

3. Which is or has been used as a means of committing a criminal offense; or

4. The possession of which is illegal; or

5. Which would be material evidence in a subsequent criminal prosecution in this state or in another state; or

6. The seizure of which is expressly required, authorized, or permitted by any statute of this state; or

7. Which is kept, stored, maintained, transported, sold, dispensed, or possessed in violation of a statute of this state, under circumstances involving a serious threat to public safety or order, or to public health.

What is a Seizure?

A seizure is a police officer’s interference with a citizen’s ability to control his person or his property. Types of seizures are arrests, stops, and removal of property. A seizure is governed by the Fourth Amendment.

What Constitutes a Stop?

A stop is a limited detention for the purposes of obtaining a person’s name and address, identification (if available), and an explanation of the person’s actions. A stop must be supported by reasonable suspicion of criminal activity. Its time frame is limited to the officer’s diligence in carrying out the purposes of a stop. Any unreasonable use of force or an extended period of detention is likely to be held to be an illegal arrest. A stopped suspect may not automatically be frisked for possible weapons. A frisk is permitted only if there are articulable officer safety concerns.

Police Contacts by Police in Colorado

Contacts (Consensual Interviews)

Contacts are not technically “seizures” because they involve minimal restrictions upon a person’s freedom of movement.

A contact entails a face-to-face meeting between a person and a peace officer in which the officer does not use his authority (express or implied) or physical force to restrict the person’s freedom of movement.

Peace officers may contact any person for any reason. A contact does not require reasonable suspicion for its justification. A contact can follow a valid stop. Officers have no authority to restrain or detain a person who chooses to walk away.

It is the person’s reasonable perceptions, rather than the officer’s intent, that determines whether an encounter is a contact. If the person, for specific reasons, reasonably thought that he was not free to leave, then the encounter has become a “stop” that must be justified by the officer’s reasonable suspicion. Courts will look at the totality of the circumstances.

Some Examples:

The officer blocks the path of a person with his body and rests his hand on his weapon while asking the contactee questions. This would probably be held to be a “stop” rather than a contact.

The officer and three other officers surround a person and ask him questions. This also would probably be held to be a “stop.”

The officer blocks a pedestrian’s path with his patrol car lights shining in his eyes and gets out to question the person. This creates a “stop” situation. The Colorado case is People v. Trujillo, 773 P.2d 1086 (Colo. 89).

Officers approached Johnson, who was standing in an airport boarding line, and asked if they could talk to him. Cocaine was discovered during a subsequent consent search of his bag. The trial court suppressed the cocaine as the fruit of an illegal stop because there was no reasonable suspicion of criminal activity.

The Colorado Supreme Court reversed. It held that this was a contact, rather than a stop, and therefore no reasonable suspicion was required. The court said it was a contact because: (1) the officers approached defendant and did not attempt to detain him or prevent him from moving along in the line [defendant was not asked to step out of the line or to remain with the officers]; (2) the officers spoke in a “conversational” tone; (3) the officers asked, rather than demanded, to see defendant’s ticket and identification; (4) the officers were not in uniform and did not display any weapons; (5) defendant was only asked six questions; (6) the officers did not remove defendant’s bags from him, he handed them to the officers; and (7) the entire encounter lasted only two to three minutes. People v. Johnson, 865 P.2d 836 (Colo. 94) [NOTE: The court said: (1) merely asking for ID does not automatically create a stop; (2) prolonged questioning after providing proper ID and satisfactorily answering questions creates a stop].

Officers approach of occupants of illegally parked vehicle was a contact, not a stop, and therefore the later discovered evidence was not the fruit of an illegal stop. The court noted: (1) the officers did not stop the car, it was already parked; (2) the officers parked their patrol car ten to twenty feet behind the parked car [which only “slightly” restricted the parked vehicle’s ability to leave since it could get out with some “maneuvering”]; (3) the officers trained their spotlight on the van and used flashlights during the contact [However, they did not use the spotlight as a “means of intimidation:]; (4) “significantly,” the officers did not turn on the patrol car’s overhead light bar; (5) both officers approached the passenger side of the parked car [they did not “surround” it]; (6) the officers did not act in a “threatening manner; (7) the officers did not display their weapons; (8) the officers did not physically touch either party; (9) the officers did not use an “intimidating” tone of voice [in fact, the court noted that the officers were rather “mild mannered” and their greeting — “Hi guys. How are the police officer doing”, was “casual and friendly”]; and, (10) the consent to search was obtained through “non-coercive” questioning. Possible pretext motives of officers were irrelevant because there was objective reason to contact occupants of an illegally parked vehicle.

This was the well known case of People v. Cascio, 932 P.2d 1381 (Colo. 97)

During a routine traffic stop, an officer’s non- coercive request to see a passenger’s identification does not constitute a stop of the passenger. However, it became a stop when the officer said, “Hang tight in the car, I’ll be back with the police officer in a minute,” and then retained the defendant’s identification while the officer returned to his patrol car for ten to fifteen minutes to run a routine warrants check. The court said that, even though the officer’s tone was conversational, his “choice of words” indicated that it was a “command” to the passenger to remain in the car. The court said that whether an officer retains a person’s identification is a critical factor in distinguishing a contact from a stop. People v. Jackson, 39 P.3d 1174 (Colo. 2002)

Police Non – Consensual Stops in Colorado  – Also Known as Investigative Detentions

Stops

A stop occurs whenever the police officer use the police officer r express or implied authority to temporarily detain a person based on a reasonable suspicion that he has committed, is committing or is about to commit a crime. A stop is considered a seizure for Fourth Amendment purposes. Courts recognize stops as a legitimate form of intermediate police response.

Although both an arrest and a stop involve restricting a person’s freedom of movement, a stop differs from an arrest in several significant ways. First, the police officer’s knowledge at the time of the stop amounts to reasonable suspicion but not to probable cause. Second, in a stop, the police officer’s purpose is to investigate or prevent criminal activity, while in an arrest, the police officer’s purpose is to take the person into custody and charge him with committing a crime.

Unless a stop produces information establishing probable cause to arrest, the suspect should not be detained for longer than is necessary to obtain identification and an explanation of his actions, nor should he/she be subjected to intensive questioning.

While some circumstances may justify a longer period of detention -these will be rare and the police officer must actively be working on verifying necessary information during the time that the person is detained.

Whenever detention and questioning are more than brief and cursory, there is an arrest which must be supported by probable cause.

Some examples:

After a valid stop for a traffic violation, it is constitutionally permissible for the officer to demand a driver’s license, vehicle registration, and proof of insurance. “The officer’s subjective decision not to give a ticket does not strip the officer of legal justification to make further inquiries.”

There are four circumstances that determine whether the scope and purpose parameters of a valid investigatory stop have been exceeded:

(1) the length of the detention;

(2) whether officers diligently pursued the investigation during the detention;

(3) whether the suspect was moved from one location to another;

and

(4) whether there were other less intrusive means available to accomplish the purposes. Court ruled that the initial traffic stop was proper and that further detention was justified to clarify the irregularities in the registration papers. However, it ruled that the “forced return” to a point that was 10 miles in the “opposite direction” of the driver’s destination and the total 90 minute detention, had escalated the stop into an arrest for which no probable cause existed.

The court said that this was not “diligent” investigation and that other, less intrusive, alternatives were available to the officer. Driver’s consent to search was therefore a “fruit” of the improper arrest.

This was the case of People v. Rodriguez, 945 P.2d 1351 (Colo. 97)

During a routine traffic stop, an officer’s non- coercive request to see a passenger’s identification does not constitute a stop of the passenger. However, it became a stop when the officer said, “Hang tight in the car, I’ll be back with the police officer in a minute,” and then retained the defendant’s identification while the officer returned to his patrol car. The court said that, even though the officer’s tone was conversational, his “choice of words” indicated that it was a “command” to the passenger to remain in the car.

This was the case of People v. Jackson, (02-1) 39 P.3d 1174 (Colo. 2002)

Court ruled that initial encounter with a suspect was a contact because officers did not use any physical force or a show of authority to restrain the defendant’s liberty. They did nothing to suggest that he was “seized.” A stop does not occur “when police ask questions of an individual, ask to examine the individual’s identification, and request consent to search his or her luggage, so long as the officers do not convey a message that compliance with their request is required.”

The Court said, “Merely asking questions about criminal conduct does not transform a contact into an investigatory stop.” However asking such questions in a “tone of voice” that indicates compliance is required, may indicate a stop. Also, the mere passage of time does not turn a contact into a stop as long as there is no indication it is not the determinative factor. Court then held that the initial contact “ripened” into a stop at a specific point.

However, it ruled that the facts known to the officers at that point in time rose to the level of an “articulable suspicion of criminal activity” even though the officers did not possess any facts indicating actual criminal activity at that time. Court recognized that there are “circumstances in which wholly lawful conduct might justify suspicion that criminal activity was afoot.” Here, the officers’ training and experience together with the defendant’s conduct and statements, gave them reasonable suspicion to conduct a stop. Also, court said the stop was reasonable because the officers only asked defendant three questions relating to criminal activity and drug use.

This was the case of People v. Morales, 9.5 P.2d 936 (Colo. 97)

An officer’s asking for identification alone does not amount to a “seizure” under the fourth Amendment. Asking for identification is a factor in deciding if a stop has occurred, but it does not, in and of itself, automatically create a stop. The totality of the circumstances determine whether a stop has occurred. Court said this was a contact, not a stop, because: (1) the officer did not “block in” the parked vehicle with his cruiser; (2) although the officer shone his vehicle’s spotlight on the parked vehicle, the court said it was merely to provide illumination and there was “no display of authority or control by activating the siren or any patrol car overhead lights”; (3) the officer approached the vehicle in a “non-threatening” manner and “without his gun displayed”; (4) the officer “asked, without any show of force,” what the occupants of the car were doing; (5) the officer “asked for,” rather than “demanded,” identification; and, (6) the officer’s behavior was “not so intimidating as to demonstrate that a reasonable person would believe he is not free to leave if he does not respond.”

The Court said the totality of the circumstances indicated that this was a contact because the defendant’s liberty was not restrained and his voluntary cooperation was elicited through non-coercive questioning. Majority opinion did caution that events that occur after a citizen provides identification during a contact can turn the contact into a stop. These events include the length of time that the officer retains the identification, or a request by the citizen to be left alone or to go on about their business. The Court held that officer was not required to inform the defendant that he had a right to refuse the request for his identification.

This was the case of People v. Paynter, 955 P.2d 68 (Colo. 98)

A police officer, driving by the parking lot of an off-hours medical clinic, observed defendant attempting to conceal himself by ducking behind a vehicle in the parking lot. He observed defendant with his body halfway inside a car on the passenger’s side. Defendant exited the vehicle, shut the door, and started walking away. The officer shouted, “Stop. I want to talk to the police officer .” At that point, defendant began to run from the scene. The officer gave other officers a description of defendant by radio and said that defendant was running away. Defendant did not stop until he was taken down by a police dog. Objective observations of a person’s “nervous or unduly cautious behavior” may be considered as part of the totality of the circumstances.

Flight alone does not support reasonable suspicion of criminal activity. However, flight is a significant factor in evaluating the totality of the circumstances. “Headlong flight – whenever it occurs is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” A police officer’s pursuit of a fleeing person does not constitute a seizure absent any physical contact with the person or evidence that the person yielded to a show of authority. California v. Hodari D.

The police pursuit of defendant up to that point did not constitute a seizure. The first officer’s observations of the defendant ducking behind a vehicle in a parking lot late at night and defendant’s subsequent flight were sufficient to raise a reasonable suspicion justifying an investigatory stop. Defendant refused to stop despite demands from two police officers at two different locations. In fact, defendant continued to flee until actual physical force was applied to bring him to a stop.

This was the case of People v. Pigford, 17 P.3d 172 (Colo. App. 2000)

At 2:50 a.m. a police officer stopped a vehicle for a windshield obstruction violation. He approached the car and asked the driver and the lone occupant for her license and vehicle registration. The driver handed the officer her license, but told him that since the car belonged to a friend, she did not have registration paperwork. A computer check on the license plate number of the vehicle did not reveal any problems. However, a computer search on the VIN indicated that the vehicle was reported stolen. While the officer was running the computer searches, he observed the driver make a call in her vehicle from a cellular phone. Shortly thereafter, a Suburban with tinted windows pulled up behind the officer’s patrol car. The Suburban stopped one to one-half car lengths behind the officer’s vehicle, and the driver left the headlights on. The officer testified that, because of the headlights and the time of night, he could not see into the Suburban.

Therefore, he could not determine how many people were in the vehicle. The officer testified that the Suburban’s presence alarmed him, and that he feared an ambush. He also testified that in his eight years experience, no other car had pulled up directly behind him during a traffic stop. The court held that it was reasonable for the officers to be suspicious about the motive and intent of the driver of the Suburban. The officer had discovered that stopped vehicle was listed as a stolen vehicle; it was nearly 3:00 a.m. and no one else was present; the Suburban arrived after the suspect in the stolen vehicle placed a phone call; and the Suburban pulled directly behind the officer and left the headlights illuminated such that the officer could not see into the Suburban.

Under all of these circumstances, it was clearly reasonable for the officers to believe that the occupant(s) of the Suburban could pose a threat to their safety. Therefore, the officers were entitled to order the driver out of the Suburban, and conduct a protective search for weapons. The officers had more than “an unparticularized hunch” that the driver may have been involved in some type of criminal activity, and accordingly had a sufficient articulable basis in fact to conduct the stop. The officers’ purpose was to avoid ambush and question the driver of the Suburban in connection with the questioning and possible arrest of the driver of a stolen vehicle.

This was the case of People v. Smith, 13P.3d 300 (Colo. App. 2000)

Under Colorado Law – CRS 16-3-103 (1) [Stopping a Suspect] states that a peace officer may:

— stop any person who he reasonably suspects is committing, has committed, or is about to commit a crime: and

— require him to give his name and address, identification if available and an explanation of his actions.

An officer’s conduct during a stop is dictated by this statute. Because a stop can turn into an arrest based upon the length of the detention, officers must diligently attempt to verify a suspect’s true identity in questionable cases. There is no set time period, however if a serious crime is involved the courts will probably uphold a longer detention period.

Some recent court decisions have also addressed the issue of what constitutes reasonable suspicion “of criminal activity” to justify a stop. Both the U.S. Supreme Court [Illinois v. Wardlow, 120 S.Ct. 673 (2000)] and the Colorado Supreme Court [People v. Canton, 951 P.2d 907 (Colo. 98)] have recently held that a person’s “unprovoked” flight from officers, in an area “known for drug trafficking,” provided reasonable suspicion for officers to stop (not arrest) the individual.

Both courts emphasized that neither mere flight, nor mere presence in a high crime area, by themselves, provide reasonable suspicion to stop. Rather, they say that the factors noted, unprovoked flight and presence in a high crime area, provide reasonable suspicion of some “criminal activity.”

Are RANDOM Stops are Prohibited?

Courts have ruled that random stops for identification and random vehicle stops to check for licenses are improper. A stop must be based upon reasonable suspicion of criminal activity (past, present, or future). Delaware v. Prouse, 99 S.Ct. 1391 (1979).

“Unbridled discretion” in these cases violates the law. For this reason, procedures that take away this discretion are permissible. Thus, roadblocks where every car is stopped are acceptable. So is a situation where every, say, tenth car (or fifth, etc.) is stopped.

The U.S. Supreme Court has ruled that sobriety checkpoints that stop all motorists and provide sufficient administrative guidelines are constitutionally permissible. Michigan Dept. of State Police v. Sitz, 111 S.Ct. 2481 (1990).

The Colorado Supreme Court has also upheld sobriety checkpoints in two cases: People v. Rister, 803 P.2d 483 (Colo. 1990), and Orr v. People, 803 P.2d 509 (Colo. 1990). In both cases, sufficient administrative guidelines were used to keep intrusions on motorists to a minimum. The average time motorists were detained was 15-30 seconds in Orr and 3 minutes in Rister. The Colorado Attorney General’s Office issued an opinion (dated 9/9/85) upholding the legality of sobriety checkpoints “as long as adequate safeguards are maintained to minimize the intrusion on the individual motorist.” The opinion should also be consulted for suggested guidelines. The actual implementation of a sobriety checkpoint operation should be by administrative order and after consultation with the Attorney General or district attorney.

Where Does the Authority to Stop Persons Come From?

C.R.S. 16-3-103 authorizes police officers to stop and detain any person reasonably suspected of criminal activity. This includes the authority to stop automobiles whenever the police officer have reason to suspect that the driver is violating a traffic regulation, or that the vehicle or its occupants have been, are, or are about to be involved in a criminal offense. A command or a request that a suspect stop, halt, approach the police officer or the police officer r car, or remain where he is so the police officer can approach him is a “seizure” of the suspect’s person, if he complies, and must be “reasonable” under the Fourth Amendment.

The police officer has the authority to exercise the stop power in any place the police officer have a right to be. Such places include areas open to the public and private premises the police officer have entered with a search or arrest warrant, with proper consent or invitation, or because of emergency or exigent circumstances.

Stops Must Be Based Upon Reasonable Suspicion of Criminal Activity

When the police officer has reasonable suspicion that a person has committed a crime or is involved in criminal activity, or is about to be involved in criminal activity, the police officer may command that person to stop. There is a “reasonable suspicion” that a particular situation exists if a reasonable police officer (that is, a knowledgeable, trained and cautious officer with good common sense) draws conclusions from information given to him or facts he has personally observed indicating the persons or vehicle may have been or may be involved in criminal activity and therefore is a proper object of investigation. When the police officer’s source of information is an anonymous tip or an informant of questionable reliability, the police officer must corroborate or add to the information by the police officer’s own observations before making the stop.

Justification for the stop will be demanded later. The police officer should be able to state, rather than just “feel” the police officer’s conclusions, and the police officer must be able to state how the police officer arrived at those conclusions. The police officer may rely on the officer’s experience to support the officer’s conclusions; some circumstances may mean very little to the average citizen, but mean something to an experienced police officer.

If the police officer only has a hunch that the person committed a crime or is about to be involved in criminal activity, the officer must have other evidence – developed during the stop that amounts to “reasonable suspicion” before the police officer can consider stopping him.

One fact may be so strong that it alone provides reasonable suspicion, but usually the police officer will try to put together several facts to try to articulate the officer with suspicions that are reasonable.

In general, for present or impending criminal activity, suspicions will arise when the person’s behavior or presence is abnormal in the circumstances or fits a pattern the police officer recognize as typical of criminal conduct including preparation to commit a crime in the immediate future.

The following are factors are the kinds of things that the officer will try to develop to support the stop based on reasonable suspicion:

The appearance of the person or the vehicle. Does the description fit a person or vehicle wanted for a particular offense? This factor is strongest and may be enough by itself when the description is specific and detailed and the fit is close.

The actions of the person or the vehicle. Does the behavior indicate possible criminal conduct? Is the person on foot or in a vehicle lurking in a deserted area? Is he carrying anything that might be connected with a crime?

Area of the stop. Is the person or vehicle near the area of a known offense soon after its commission? Is the immediate area the site of recent activity of the kind the police officer suspect the person is involved in? While the mere fact that the person is in a high crime area is not a sufficient single cause to make the person a suspect, the area plus the person’s actions may create reasonable suspicion.

Time of day. Is it unusual for people or vehicles to be in this area at this time? Is it unusual for people with the suspect’s characteristics to be in this area at this time? Note that these questions combine other factors with time of day.

Knowledge of the person’s criminal convictions. Does the person have a prior record of convictions for offenses similar to the one for which the police officer have him under suspicion? This alone is never a reason to stop someone.

Some examples:

The Colorado Supreme Court ruled that the following scenario did not justify a stop:

(1) the presence of three males dressed in a manner which led the officer to infer that they were members of the Crips gang;

(2) that two of the police officer ths ran to the entrance of the apartment building upon observing the officer’s vehicle;

(3) that the apartment building in question was the residence of several leaders of the Bloods gang;

(4) that the previous week the officer had arrested residents of that building in connection with a drive-by shooting and an assault on a member of the Crips gang;

and (5) that the apartment complex in question is an area characterized by a relatively high crime rate.

The Court emphasized that it takes something more than “gang-type dress” to justify a stop. There must be reasonable and articulable suspicion of actual criminal activity. Additionally, the Court observed that “there were not any bulges in the clothing of the individuals, or other indication that any of them were carrying weapons”. The Court also discounted the “high crime area” factor. It noted that, “A history of past criminal activity in a locality does not justify suspension of the constitutional rights of everyone, or anyone, who may subsequently be in that locality”.

The was MY CASE – H. Michael Steinberg when I was a prosecutor in Arapahoe County – People v. Rahming, 795 P.2d 1338 (Colo. 90)

. The Judge was John Leopold.

Officers’ observation of four people in a “huddle” in front of a bar that was in a neighborhood known for drug activity, who began walking away when they saw the officers, did not provide reasonable suspicion to stop any of the people in the group.

This was the case of People v. Outlaw, 17 P.3d 150 (Colo. 2001)

The observation of three individuals, one of whom was holding money in his hand, conversing together in an area known for drug trafficking does not provide reasonable suspicion for a stop. However, an officer may still approach the individuals, without any assertion of authority, to merely contact them. But, a furtive gesture, which creates officer safety concerns, during a contact can then justify a stop to frisk for weapons, and a subsequent non-coerced consent to search for identification justifies seizure of drugs found in subject’s pocket.

This was the case of People v. Mack, P.3d (Colo. App. 2001)

U.S. Supreme Court ruled that a person’s “unprovoked” flight from officers, in an area “known for drug trafficking,” provided reasonable suspicion for officers to stop the individual. Court emphasized that either flight, or presence in a high crime area, by themselves, do not provide reasonable suspicion to stop. Court’s opinion relied heavily upon the fact that the flight occurred in an area “known for drug trafficking.” It was this fact, together with the flight, that gave the officers reasonable suspicion to stop.

This was the Federal Case of Illinois v. Wardlow, 120 S.Ct. 673 (2000)

Flight, by itself, does not support reasonable suspicion of criminal activity that justifies a “stop.” However, when taken together with an officer’s objective observations of a person’s “nervous or unduly cautious behavior,” it may constitute reasonable suspicion. Once a police officer has acquired the legal privilege to conduct a stop, he/she may employ those “coercive tactics” that are reasonable under the totality of the circumstances, such as display of weapons, use of handcuffs, confinement in a vehicle, and physical force, in order to effect the stop in a manner which assures safety for the officer, the public, and the person stopped.

This was the Colorado case of People v. Pigford, 17 P.3d 172 (Colo. App. 2000)

The U. S. Supreme Court ruled that a foot pursuit of a suspect does not constitute a seizure. The court held that a Fourth Amendment “seizure” does not occur until an officer applies physical force (however slight) or the suspect actually submits to an officer’s “show of authority.” In the case before the Court, the suspect threw away the cocaine during his flight from the officer. The suspect was not “seized” during this time and thus the cocaine is admissible even though officers lacked reasonable suspicion to stop (“seize”) him. The suspect was not actually seized until police tackled him at the end of the foot chase. California v. Hodari, 111 S.Ct. 1547 (1991). Note: This case does not stand for the proposition that all suspicionless pursuits of fleeing persons are lawful.

The outcome of this case only turned on the fortuitous fact that the suspect threw away the cocaine during the chase. Had the suspect not thrown away the cocaine and then stopped on his own (submitted to the officers’ “show of authority”) or still had it on him after he was tackled, the cocaine would have been suppressed as the fruit of an unlawful seizure. The Colorado Supreme Court adopted the holding of Hodari D. People v. TH., 892 P.2d 301 (Colo. 95) & People v. Arcuuleta, 980 P.2d 509 (Colo. 99) However, if in the act of fleeing, a suspect commits a crime (e.g., reckless driving, reckless endangerment, etc.), the suspect may be pursued and arrested even though there was no reasonable suspicion for the initial attempt to stop. People v. Smith, 870 P.2d 617 (Colo. App. 94).

“Evaporation” of Reasonable Suspicion

Sometimes, during a valid stop, further investigation reveals that an officer’s initial assessment of reasonable suspicion of criminal activity was incorrect. In these cases, courts hold that the reasonable suspicion justifying the initial stop has “evaporated” and the officer has no further authority to detain, interrogate, or to request information. If this situation occurs, the police officer should terminate the stop and attempt to get a valid consent to remain as discussed in section 1-209.

Some examples:

An officer stops a car that appears to have no license plate. Approaching the vehicle, the officer sees a valid temporary registration in the rear window. The officer asks the driver for his driver’s license and observes drugs when the driver opens his wallet. The court rules that reasonable suspicion “evaporated” when the officer saw the valid temporary registration and the officer had no authority to demand identification after that point in time. The drugs were therefore suppressed.

This was well known Colorado case of People v. Redinger, 906 P.2d 81 (Colo. 95).

Because it is a traffic code violation to have obscured plates, the grounds for a vehicle stop did not “dissipate” even though the officers were eventually able to read the plate through the mud covering it. Officers could lawfully continue the stop and ask for identification.

This was the Colorado case of People v. Altman, 938 P.2d 142 (Colo. 97)

What is the Procedure the Officer May Use in Conducting the STOP?

Officer safety issues permit a person to be moved to, and detained in, a nearby patrol car, without constituting an arrest. However, the length of the detention and the officer’s diligence in investigating the incident, could turn it into an arrest. In the Garcia case, the Colorado Court said that a fifteen minute detention in the patrol car, and the officer’s diligence in investigating the incident, did not make that stop – an arrest. People v. Garcia, 11 P.3d 449 (Colo. 2000)

An officer, after observing a suspect leaning into a car, shouted, “Stop. I want to talk to the police officer ” as the suspect began walking away. The suspect then began to run from the scene. Another officer exited his vehicle with his gun drawn and ordered defendant to stop. Defendant did not stop, but continued to move away from the officer until he was apprehended by a police dog. The suspect was then handcuffed. A pat-down search of defendant disclosed a screwdriver in his pocket.

The court ruled that these facts gave the officers reasonable suspicion of criminal activity. A police officer may use reasonable measures to ensure his or her own safety during a stop, and it does not automatically transform a stop into an arrest. However, the police should use the least intrusive means reasonably possible during a stop. The court noted that the analysis of a stop must focus on whether the police conduct, in light of all the circumstances, was reasonable, and not on the degree of force used: “We should not ask whether the force used was so great as to render it an arrest but, instead, whether the force used was reasonable.” It said that the circumstances showed that using force to stop the defendant, handcuffing him, and placing him into the police vehicle were necessary in order to detain him. The officer’s display of his weapon was also reasonable in effecting the detention of the defendant, because the identity of the defendant was unknown to the police, it was late at night, and defendant had refused to comply with the officers’ lawful commands to stop.

Under these circumstances, the display of the weapon was a reasonable precaution for the safety of the officer. The court ruled that the methods used by the police were reasonable, and under the circumstances, they were the least intrusive means possible to detain the defendant. The use of force did not convert this stop into a full arrest. The court said that once a police officer has acquired the legal privilege to conduct a stop, he/she may employ those “coercive tactics” that are reasonable under the totality of the circumstances, such as display of weapons, use of handcuffs, confinement in a vehicle, and physical force, in order to effect the stop in a manner which assures safety for the officer, the public, and the person stopped.

This was the Colorado case of People v. Pigford, 17 P.3d 172 (Colo. App. 2000)

At 2:50 a.m. a police officer stopped a vehicle for a windshield obstruction violation. He approached the car and asked the driver and the lone occupant for her license and vehicle registration. The driver handed the officer her license, but told him that since the car belonged to a friend, she did not have registration paperwork. A computer check on the license plate number of the vehicle did not reveal any problems. However, a computer search on the VIN indicated that the vehicle was reported stolen. While the officer was running the computer searches, he observed the driver make a call in her vehicle from a cellular phone. Shortly thereafter, a Suburban with tinted windows pulled up behind the officer’s patrol car. The Suburban stopped one to one-half car lengths behind the officer’s vehicle, and the driver left the headlights on. The officer testified that, because of the headlights and the time of night, he could not see into the Suburban. Therefore, he could not determine how many people were in the vehicle.

As a result, the officer radioed for backup and a second officer arrived within two to five minutes. The officers then approached the Suburban with their guns drawn, and one of them yelled “forcefully and directly” at the driver to turn off the ignition and drop his keys out the window. The driver complied and an officer then yelled at the driver to exit the vehicle slowly keeping his hands in the air. The officers ordered the driver to turn around so that the officers could do a visual search for weapons, and then they ordered him into a kneeling position with his hands behind his head. The officers’ commanded Smith to lie prone, handcuffed him, and took him into custody for the crime of interference with police authority, in violation of a municipal ordinance.

At that point, the officers re-holstered their weapons. The officers stood the driver up, conducted a pat down search, and obtained permission to search the Suburban. At no point after arriving at the scene had the driver made any movements or attempt to get out of the car until told to do so by the officers. He neither resisted the officers, nor failed to comply with any of their commands. The officers testified that they would have searched the Suburban, even without his consent, under their search incident to arrest authority. The search of the Suburban revealed a loaded handgun in the center console and a substance that appeared to be crack cocaine in the overhead console. The court held, that under these circumstances, this was a stop despite the show of force and resulting seizure.

Because roadside encounters between police and suspects are recognized as being especially hazardous, when police conduct a stop in the context of a traffic stop, an officer may order the driver or passengers out of the automobile and conduct a protective search of the passenger compartment of the vehicle for weapons as long as the officer possesses a reasonable belief that the occupants pose a danger. Such a limited intrusion is viewed as a reasonably effective method of neutralizing the risk of physical harm confronting the officer, and permits an officer to take physical control of or seize a suspect. The court said that an officer may use force in detaining a suspect, and the fact that some force is used does not necessarily convert the police-citizen encounter into an arrest.

The use of physical restraint, handcuffs, and weapons in the same stop is only justified when the circumstances indicate that such force constitutes a “reasonable precaution for the protection and safety of the investigating officers.” In pursuit of that purpose, in this case the officers properly confined the driver of the Suburban and searched his car. The court noted that it has repeatedly found it reasonable to conduct a stop and protective frisk when the suspect made a furtive gesture in response to the initial police contact.

The court cited opinions in other jurisdictions that have upheld various means of physical restraint during stops: including the drawing of weapons, seizing the suspect’s car keys, deflating the suspect’s tires, using handcuffs, laying the suspect on the ground, and surrounding the suspect with multiple officers. Here, the court said, the officers used a reasonable amount of force in light of the situation. The final question for the court was whether the evidence discovered during the protective search of the Suburban was admissible. When police conduct a traffic stop, they may frisk the passenger compartment of the vehicle for weapons if the officers reasonably believe that the occupants pose a safety risk.

During a protective frisk, police may search all compartments where a weapon may be hidden. When an officer is constitutionally justified in conducting a protective frisk of an automobile for weapons, and other evidence of a crime is discovered, the plain view doctrine allows the officer lawfully to seize the object without a warrant.

The officers were entitled to frisk the car for weapons because they justifiably believed that they were dealing with a potentially dangerous suspect. The fruits of that frisk, the loaded handgun and the cocaine, were properly discovered during the course of the protective frisk. Both items were in compartments large enough to contain a weapon or were in plain view, and the officers had probable cause to associate both the gun and the drugs with criminal activity.

This was the Colorado case of People v. Smith, 13 P.3d 300 (Colo. App. 2000)

An officer’s use of force (e.g., drawing a weapon, ordering occupants out of a car, directing a person to lie on the ground, handcuffing, etc.) generally constitutes an “arrest” which must be based upon probable cause. However, when the officer’s conduct is based upon specific facts, rather than mere generalized information, that show an officer safety concern, then the use of “reasonable” force will not turn a stop into an arrest. People v. King, 16 P.3d 807 (Colo. 2001)

How Long Can the “Stop” last? – (the duration of a stop)

The amount of time the person is detained must be reasonable. The reasonableness of the length of detention will depend upon the purpose of the stop and the circumstances surrounding the stop. The police officer should be able to point to specific facts that made it necessary for the police officer to deprive the suspect of his liberty for any period of time prior to arresting him or releasing him. As a general rule, routine detentions should not exceed twenty minutes. The U.S. Supreme Court, without offering a general rule, has held that a 90-minute detention of a suitcase was unreasonable.

The length of detention must be related to either the original purpose of the stop, or to a new purpose based on reasonable suspicion arising during the stop. It may be reasonable, for example, to detain a suspect for about five minutes when the police officer r threshold inquiry purposes are simply to team his identity and to obtain a brief explanation of his suspicious actions. If the person has adequately identified himself and explained his suspicious actions, he should not be detained further.

On the other hand, a suspect’s refusal to answer the police officer r threshold inquiry questions may extend the reasonable length of a detention beyond a few minutes to let the police officer pursue alternative means to learn his identity or verify or remove the police officer r suspicions, such as a call to communications to see whether any offenses like that the police officer suspect have been reported in the area or a call to another officer nearby who the police officer believe may be able to identify the suspect.

One factor that will affect the reasonableness of the duration of the stop is whether the police officer are diligently pursuing a means of investigation which is likely to resolve the matter one way or another very soon.

Courts will look at the factors in each case to determine whether the length of the stop is justified. The Colorado Supreme Court has held that, in some cases, an additional 5-6 minute detention to fill out a field index card on the suspect might be held to be an improper extended detention unless the officer can justify the extended period of detention.

This was the Colorado case of People v. Cobb, 690 P.2d 848 (Colo. 84).

When the police officer’s stop involves a motor vehicle, unless the police officer makes an arrest, the police officer may detain the vehicle and its occupants only as long as necessary to ascertain whether a crime or traffic violation has been committed and to issue a citation.

Can the stopped suspects be moved around?

In most situations, the police officer’s will question the suspect at the place where the police officer made the stop because moving the suspect could be later viewed as an arrest. People v. Cobbin, 692 P.2d 1069 (Colo. 84)

Under certain circumstances, however, the police officer may move the suspect a short distance away from the point of the stop. Examples of such circumstances are when a hostile crowd has gathered or when the police officer wish to reach a police radio. In such situations the police officer may place the suspect in the back seat of the police officer’s car, if clearly necessary, to hold him while the police officer are waiting for an answer to a radioed request or the arrival of an eyewitness.

Some examples:

The police officer receive a radio report of a suspect being pursued by an elderly businessman nearby. The police officer spot the suspect and stop him. The pursuing officers arrive and seize a wad of money from suspect’s pocket. Suspect is then handcuffed and placed in a patrol car. He is returned to the scene where the elderly businessman identifies him as the person who took the wad of money from him. No one ever asked the suspect for an explanation of his actions. The wad of money is later suppressed as evidence because the officers’ actions exceeded the purpose of a valid stop and there was no probable cause for arrest at the time the money was seized.

This was the Colorado case of People v. Cobbin, 692 P.2d 1069 (Colo. 84).

CLICK HERE TO READ PART II FOR QUESTIONING OF A SUSPECT


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H. Michael Steinberg Esq.
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