People v. Johnson , 199 Colo. 68 ( 1980 )

GROVES, DUBOFSKY and LOHR, Justices,

dissenting:

We respectfully dissent as we are unable to agree that the trial court’s findings of fact and the underlying record supports the majority’s conclusion that probable cause existed to justify the arrest.

We agree with the majority that the facts known to Officer Northern at the time he told the occupants to stay in the car after it had stopped at the curb were sufficient to justify a valid Stone stop. Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971). The facts, as detailed in the majority opinion, justified a reasonable and articulable suspicion that at least one of the car’s occupants had been involved in the recent and nearby robbery of the 7-11 store.

The issue, however, is not simply whether the initial stop was reasonable and justified under Stone and its progeny. The crucial issue here is whether there was probable cause to arrest the defendant at the time the arrest was made.

This court’s opinion that the stop was valid makes it essential that events subse-. quent to the stop be analyzed in light of applicable legal standards in order to determine whether the motions to suppress should be granted. The trial court did not find it necessary to make the detailed findings of fact and conclusions of law appropriate to such analysis because of its threshold conclusion that the stop was invalid.

Examination of the record reveals contradictory and inconsistent testimony pertinent to that issue. The trial court’s ruling does not contain findings of fact necessary to the resolution of the second issue. This absence becomes significant once it is recognized that the stop was valid.

It is not at all clear from the testimony that new knowledge, sufficient to amount to probable cause, accrued to Officer Northern between the time of the stop and the arrest. The majority accepts as dispositive Officer Northern’s testimony that as he approached the car he pointed his flashlight into it and saw in the rear seat a man resembling the broadcast description of the robber. The majority gives no weight to Officer Northern’s initial testimony on cross-examination that not until he had frisked both men did he notice the resemblance of one of them to the broadcast description.

“Q Now, let’s proceed. You stopped the persons, you got on your microphone, and you said, ‘Hey, don’t get out of the car,’ and so forth. Officer Greer came on the scene. What happened at that point. You took the persons out of the car?

“A Yea. He approached from the right, and I approached from the driver’s side. We ordered all the occupants out of the car with their hands up on the car.

“Q Okay. When were the persons placed under arrest.

“A When I first took them out of the car and put them up against the car, I told them that I was investigating an aggravated robbery, keep their hands on the car, and I started to frisk the subject that I had — I had two on my side — and started frisking those two on the driver’s side, and then that was it.

“Q Would you answer my question? When did you place the persons under arrest?

“A Okay. After I frisked them, I noticed that one of the subjects fit the description that was aired over the air. That was the subject that got out of the rear seat. He is also the one that had the money falling out of the pocket. Okay. I told the subjects, after the frisk, that they were under arrest for investigation of aggravated robbery.”

Testimony of others does not contribute to a clarification of the facts. The testimony of Officer Greer, the other arresting officer, gives no indication that before they ordered the car’s occupants to get out either he or Officer Northern saw that the person in the rear seat matched the broadcast description. The defendant testified that he never noticed a flashlight.

The trial court’s finding of fact is silent as to the officers’ actions as they approached the vehicle and are inconclusive as to the content of the broadcast description of the robber. Because the court was focusing upon the validity of the initial stop, no mention is made of whether flashlights were used for identification purposes, or whether or when Officer Northern noticed the resemblance.

Also, under the record the trial court could have found that the discovery of the scarf and gun was either prior or subsequent to the defendant’s arrest.

As recognized by the majority, one fact crucial to a finding of probable cause to arrest is the exact time Officer Northern noticed the resemblance. In view of the contradictory testimony and the incomplete findings of fact, we believe it unwise for the majority to emphasize some and disregard other testimony.

This case should be remanded for further proceedings. We consider it inadvisable to attempt to define or limit the additional issues to be resolved by the trial court, and would simply remand for further proceedings consistent with this court’s opinion that the initial stop was justified pursuant to Stone v. People, supra.