Chapter 4 - § 4.2 • THE INITIAL CONTACT WITH THE DEFENDANT

• Jurisdiction: Colorado

§ 4.2 • THE INITIAL CONTACT WITH THE DEFENDANT

§ 4.2.1—Overview

In the overwhelming majority of cases, the initial contact with the defendant begins as an investigatory stop of the defendant's car for some traffic offense. An investigatory stop is an intermediate form of police intrusion — less than an arrest but more than a consensual encounter — that may validly occur, in narrowly defined circumstances, with less than probable cause. Investigatory stops were first recognized by the U.S. Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). The Terry analysis was adopted by the Colorado Supreme Court in Stone v. People, 485 P.2d 495 (Colo. 1971). Investigatory stops are often referred to in the cases or by counsel by reference to Stone and Terry.

C.R.S. § 16-3-103(1) codifies the Stone-Terry rationale as follows: "A peace officer may stop any person who he reasonably suspects is committing, has committed, or is about to commit a crime. . . ." C.R.S. § 42-4-1302 codifies the Terry and Stone decisions in the DUI context as follows:

A law enforcement officer may stop any person who the officer reasonably suspects is committing or has committed a violation of section 42-4-1301 (1) or (2) and may require the person to give such person's name, address, and an explanation of his or her actions. The stopping shall not constitute an arrest.

Neither statute, of course, can override the constitutional imperatives, so the case law generally addresses the requirements of a valid investigatory stop in the context of the Constitution rather than the statutes. Under Terry and Stone, there are three considerations in determining whether an investigatory stop is valid:

1) Did the officer have an articulable and specific basis in fact for suspecting that criminal activity had occurred or was about to take place?
2) Was the purpose of the intrusion reasonable? and
3) Were the scope and character of the intrusion reasonably related to its purpose?

Terry, 392 U.S. at 21-29; Stone, 485 P.2d at 509.

§ 4.2.2—Consensual Encounters and Emergency Contacts

Before addressing investigatory stops and arrests, it should be noted that "Colorado law recognizes three types of police-citizen contacts: arrests, investigatory stops, and consensual encounters." People v. Walters, 249 P.3d 805, 808 (Colo. 2011). A consensual encounter is one "in which no restraint of the liberty of the citizen is implicated, but the voluntary cooperation of the citizen is elicited through non-coercive questioning." Id. (citing People v. Johnson, 865 P.2d 836, 842 (Colo. 1994)). While an investigatory stop "constitutes a seizure implicating the Fourth Amendment's safeguards, and therefore must be justified by reasonable suspicion, a consensual encounter does not." Id. at 809. Additionally, not all contacts with citizens involve police initially acting in a law enforcement role. The U.S. Supreme Court has recognized that some police-citizen interactions occur in situations in which officers are acting in what the Court terms their "community caretaker function." Cady v. Dombrowski, 413 U.S. 433 (1973). Colorado appellate courts have noted that "[l]aw enforcement officers may justifiably contact an unsuspicious person when other legitimate reasons exist, such as when an officer is performing his duty to aid a motorist." People v. Berdahl, 310 P.3d 230 (Colo. App. 2012) (citing People v. Davis, 565 P.2d 1347 (Colo. 1973)).

Most DUI investigations, of course, begin with a non-consensual encounter: there is no doubt that pulling a car over constitutes a seizure. Walters, 249 P.3d 805; People v. H.J., 931 P.2d 1177, 1181 (Colo. 1997). However, consensual encounter issues do arise in DUI cases when, for example, police investigating some event unrelated to DUI have an interaction with a citizen that begins as a consensual encounter, but leads to the development of probable cause to believe that the citizen was driving under the influence.

The issue is determining the dividing line between investigatory detentions requiring reasonable suspicion and consensual encounters. The test for distinguishing between the two is "whether a reasonable person under the circumstances would believe he or she was free to leave and/or to disregard the official's request for information." Walters, 249 P.3d at 809 (citing People v. Thomas, 839 P.2d 1174, 1177-78 (Colo. 1992)). This test "presupposes an innocent person," although it is clear that most consensual encounters occur when the police approach individuals because they have suspicions about them. Id. Nevertheless, "subjective intent of the officer in initiating the contact is not relevant for Fourth Amendment purposes." People v. Marujo, 192 P.3d 1003, 1006 (Colo. 2008) (citing Whren v. United States, 517 U.S. 806, 813-14 (1996)).

A court making this determination must consider all the circumstances surrounding the encounter. People v. Jackson, 39 P.3d 1174, 1182 (Colo. 2002). Jackson's central holding, that a passenger in a car is not "seized" when the car is stopped, was abrogated in Brendlin v. California, 551 U.S. 249 (2007), but the discussion of the evaluation process remains instructive. The determination should "be an objective determination based on the factual circumstances surrounding the encounter." People v. Paynter, 955 P.2d 68, 72 (Colo. 1998).

Factors that have been identified by the Colorado Supreme Court as appropriate for the trial court to consider include "(1) whether there is a display of authority or control over the defendant by activating the siren or any patrol car overhead lights; (2) the number of officers present; (3) whether the officer approaches in a non-threatening manner; (4) whether the officer displays a weapon; (5) whether the officer requests or demands information; (6) whether the officer's tone of voice is conversational or whether it indicates that compliance with the request for information might be compelled; (7) whether the officer physically touches the person of the citizen; (8) whether an officer's show of authority or exercise of control over an individual impedes that individual's ability to terminate the encounter; (9) the duration of the encounter; and (10) whether the officer retains the citizen's identification or travel documents." Walters, 249 P.3d at 809.

A person who is unconscious cannot perceive that there has been a show of authority directed against him or her and, therefore, while unconscious, cannot be seized within the contemplation of the Fourth Amendment. The Colorado Supreme Court held in People v. Tate, 2012 CO 75, that the defendant, who was asleep in his vehicle, could not be seized for purposes of the Fourth Amendment until he awoke, even though the positioning of a police officer's patrol car effectively prevented the defendant's vehicle from leaving; while the defendant was asleep, he could not perceive that there had been any show of authority directed against him.

The Colorado Supreme Court described United States v. Mendenhall, 446 U.S. 544 (1980), as "the fountainhead of the Supreme Court's modern discourse on the distinction between consensual encounters and investigatory stops." Jackson, 39 P.3d at 1180. Mendenhall listed a number of factors that might turn a consensual encounter into something more, which included "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendenhall, 446 U.S. at 554.

"A request for identification by the police does not, by itself, constitute a Fourth Amendment seizure." Paynter, 955 P.2d at 70. Additionally, an officer's mere act of checking for warrants does not transform a consensual police encounter into an investigatory stop requiring reasonable suspicion of criminal activity. People v. Ealum, 211 P.3d 48 (Colo. 2009). However, when an officer keeps a person's identification and instructs him or her to remain in the car while checking for warrants, the consensual encounter turns into an investigatory stop requiring reasonable suspicion to be justified. Jackson, 39 P.3d at 1178. A "demand" for identification may be treated differently from a "request" for identification. Paynter, 955 P.2d at 73.

The federal case law is virtually identical. "Police officers do not violate the Fourth Amendment by merely identifying themselves as police officers, asking to see identification and travel documents, and simply posing questions to a citizen." Florida v. Royer, 460 U.S. 491 (1983). Again, further actions by the police can turn this type of consensual encounter into something more. Where the police identified themselves as narcotics agents, told the defendant that he was a suspect, asked him to accompany them to the police room, and retained his plane ticket and driver's license, they seized the defendant for the purposes of the Fourth Amendment. Id.

The facts surrounding any particular "encounter" are, of course, unique to that encounter. However, it is nonetheless instructive to briefly describe some of the particular circumstances reviewed by appellate courts. In People v. Schoen, 2017 CO 65, the Colorado Supreme Court held that the continued casual questioning of a defendant after his being told not to drive due to revoked license status and expired plates did not elevate an otherwise consensual encounter into a "seizure." Additional cases include: People v. Scheffer, 224 P.3d 279 (Colo. App. 2009) (encounter held consensual when police, who had been told that defendant purchased an unusually large quantity of iodine, approached defendant, and asked defendant if he could speak to him, asked defendant to set down his bag, brought in second officer, asked defendant for consent to search his bag for drugs and, because defendant kept putting his hands in his pockets, asked defendant about weapons and got permission for a pat-down); People...