People v. Stevens , 183 Colo. 399 ( 1973 )

MR. CHIEF JUSTICE PRINGLE

delivered the opinion of the Court.

Nancy Ann Stevens, appeals from her conviction of possession of marijuana, C.R.S. 1963, 48-5-2, and violation of the contraband statute, 1967 Perm. Supp., C.R.S. 1963, 40-7-58(2). She will be referred to as defendant.

At approximately 12:45 p.m. on January 18, 1971, defendant, her infant child, and another woman parked their auto in the parking lot outside the Colorado State Penitentiary. They entered a public restroom located on the grounds of the park adjacent to the parking lot. Defendant’s companion left the restroom, returned to their car, and then proceeded to the gate of the penitentiary, looking back in the direction of the restroom. Defendant and her child left the restroom, went to the car and then entered the penitentiary.

These activities aroused a watch tower guard’s suspicion because it was a cold day and during cold weather visitors normally use the restroom inside the penitentiary rather than the restroom in the park. He immediately requested that the restroom be searched. Defendant was the last person to leave the restroom before the search party entered the restroom. The search uncovered six bags of suspected marijuana in the wastepaper basket. This search was conducted between 12:45 and 1:00 p.m. At approximately 1:00 p.m. each day, inmate crews maintain the park.

An investigator apprehended defendant and her companion in the lobby of the penitentiary and took them to the conference room. He advised them of their Miranda rights, and told them they were under arrest for possession of marijuana and bringing contraband onto penitentiary property. Defendant shortly thereafter absolved her companion from any part of illegal activities and admitted that she left the marijuana in the restroom as an inmate had instructed her to do.

Defendant was charged with the two counts, and she filed two motions: the first, to suppress her statements to the investigator on the grounds that they were involuntarily obtained, and the second, to dismiss the contraband violation on the grounds that it entailed an invalid delegation of power and was not applicable to her. The trial court denied both motions.

At a trial to the court, defendant was found guilty on both counts. Defendant’s motion for new trial was denied by the trial court.

On appeal, defendant contends the trial court erred (1) in admitting into evidence defendant’s ’statements on the grounds that People failed to show probable cause for defendant’s arrest, and (2) in denying defendant’s motion to dismiss the contraband count. We do not find merit in defendant’s contentions and, therefore, affirm the judgment of the trial court.

I.

Defendant argues that both convictions should be set aside because she was arrested without probable cause. She contends that all subsequent statements were tainted with the unlawful arrest and should not have been admitted into evidence.

People argue that (A) defendant waived her right to raise this issue on appeal because of her failure to raise the illegality of the arrest until closing argument, and (B) even if the issue is properly before this court, the record establishes probable cause for her arrest. For the reasons discussed below, we choose to reach the merits of defendant’s contention.

A.

Defendant’s pre-trial motion to suppress raised only the issue of voluntariness. At trial, when the statements were offered as evidence, defendant again objected to their admission. The trial court specifically asked for defendant to state the basis of the objection. Defense counsel again raised only the voluntariness issue. The objection was overruled and the confession was introduced into evidence. During closing argument, defendant raised for the first time the issue of taint from the allegedly unlawful arrest. She argued that the evidence produced at trial did not show probable cause for the arrest. The trial court stated that the objection should have been raised at the close of People’s case so that there would have been an opportunity for more evidence to be introduced on the legality of the arrest. Without conducting an evidentiary hearing, as it had on earlier motions to suppress, the court heard argument on the issue and ruled that there was probable cause for the arrest, and, therefore, the confessions were properly admitted into evidence.

The trial court has the discretionary power to entertain a suppression motion at trial. Crim. P. 41(e). If the trial court elects to rule on a suppression motion raised at trial, an appellate court should not consider the matter waived unless it can be shown that the trial court abused its discretion in ruling on the merits of the motion. In the instant case, the trial court chose to rule on the motion even though it was untimely. Nevertheless, since the court was the trier of the fact, a belated ruling on the admissibility of the confessions did not prejudice either defendant or People. Thus, we hold that it was within the trial court’s discretion to rule on the motion; therefore, we do not consider the issue waived. As we have pointed out, no separate evidentiary hearing on the circumstances surrounding the arrest was held at the time of trial. However, it is not necessary to remand this case for an evidentiary hearing because of our disposition on the probable cause issue.

B.

To determine whether defendant’s Fourth Amendment rights were violated, we first examine the apprehension of the defendant. The defendant and her companion were in the visitors’ lobby of the penitentiary when a prison official requested them to accompany him to a conference room where he confronted them with the contraband, and asked them to explain their actions.

We have held that a temporary police detention in the nature of “field investigation” can be justified by less than probable cause for arrest. People v. Marquez, 183 Colo. 231, 516P.2d 1134;People v. Avalos, 179 Colo. 88, 498 P.2d 1141; People v. Gurule, 175 Colo. 512, 488 P.2d 889;Stone v. People, 174 Colo. 504, 485 P.2d 495. See Comment, An Analytical Model for Stop and Frisk Problems, 43 Colo. L. Rev. 201 (1971). It is true that the “field investigation” in the cited cases did not proceed to the extent present in this case. In Stone, we said:

“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.”

We feel that actions of the officers here fall within the announced rules of Stone, and we hold that temporary detention for field investigation including some questioning is proper where the Stone tests are met.

Defendant argues that since the police characterized the detention in the conference room as an arrest, the People must show probable cause to arrest; whereas, if the apprehension was characterized as a stop, something less than probable, cause for arrest will suffice. See People v. Baird, 172 Colo. 112, 470 P.2d 20. Attaching such significance to these labels is misplaced. 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. See LaFave, “Street Encounters” and the Constitution: Terry, Sibron, Peters, and Beyond, 61 Mich. L. Rev. 39, 51-52 (1968). See also Colo. Sess. Law 1972, ch. 44, § 39-3-103.

We have found no cases which hold that the Fourth Amendment requires an officer to inform a suspect that he is being detained under a “stop” rather than a conventional “arrest.” In fact, the Fourth Amendment is invoked when a seizure occurs regardless of the means by which the officer chooses to execute it. Stone v. People, supra. Moreover, there seems to be no reason for the police to use different terminology in executing the respective detentions. In either case, the intrusion is the same. The suspect is deprived of his freedom to move. The psychological effect of the confrontation upon the suspect is examined, as was done here, in a voluntariness hearing. Therefore, we hold that labeling the detention as an arrest does not, per se, require that the arresting official have had probable cause to “arrest” the defendant with all the consequences that an “arrest” entails. The proper inquiry is whether the seizure was reasonable which turns on “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905. See also Stone v. People, supra. As pointed out by Justice Schaefer, it is “more relevant to ask whether there is probable cause for restraining a suspect than to ask whether there is probable cause for believing in the suspect’s guilt.”¹

Under Terry and Stone analysis, we must first determine whether the prison official had reasonable grounds to approach defendant in the waiting lobby and take her to a conference room for questioning. The official knew that defendant and her companion had aroused a guard’s suspicion, that a shakedown of the restroom uncovered suspected marijuana, and that the two suspects had been the last to leave the restroom prior to the search. However, the record does not indicate how many other persons used the restroom that morning or when the last shakedown occurred. Therefore, we hold that the record would not support the extent of an intrusion which would be justified by probable cause to arrest. But here defendant was not subjected to such an intrusion. She was not taken to the stationhouse, booked, and jailed to await trial until after she had confessed to the crime. Rather, the official followed an intermediate course of action by taking the suspect out of the public waiting lobby to make, as we have said, a “field investigation” which was certainly warranted under the circumstances here. As we have so often held, we deal in this area with probabilities which are not technical but are actual and practical questions of everyday life upon which reasonable and prudent men act. People v. Baird, 172 Colo. 112, 470 P.2d 20. In fact, had the officers not questioned the defendant here they would have been guilty of dereliction of duty. While we do not approve of taking a suspect any further than necessary to engage in this questioning, we believe the removal of this suspect from the prison lobby was a reasonable and sensible manner to investigate the criminal activity.

Secondly, we must determine whether the period of detention was reasonable under the circumstances. Shortly after 1:00 p.m., defendant was taken from the lobby to a conference room in the prison. She was then advised of her Miranda rights. The record indicates that sometime between her advisement and 1:30 p.m. she made a statement implicating herself and clearing her companion. On appeal, defendant does not allege that her statement was involuntary and we find nothing in the record which indicates that the period of detention was for an unreasonable period of time or for any other purpose than to question a primary suspect. Hence, we hold that intrusion was justified and reasonably conducted under the circumstances. Therefore, the trial court properly admitted defendant’s statements.

II.

Defendant also contends her conviction under the contraband statute, 1967 Perm. Supp., C.R.S. 1963, 40-7-58(2), was improper. She was convicted under the following provision of that statute:

“Any person who shall furnish or attempt to furnish to any person confined in the Colorado state penitentiary,. . . any drug, narcotic, medicine, chemical compound, tool, alcoholic beverage, firearm, explosive, deadly weapon, instrument, or other item of personal property which the person in charge of such place of confinement has previously declared by written regulation posted within such a place of confinement, or within a division of such place of confinement, to be harmful,. . . shall be guilty of a felony. . . (Emphasis added.)

Defendant argues that the clause requiring a written regulation and posted notice, underscored above, modifies each of the enumerated contraband items. She maintains that since the statutory requirements were not complied with, her conviction should fall. Furthermore, she argues that under her construction the statute unconstitutionally delegates the power to define a crime to the executive.

It is a cardinal rule of statutory construction that the legislative intent should be ascertained and given effect whenever possible. People v. Sneed, 183 Colo. 96, 514 P.2d 776; People v. Lee, 180 Colo. 377, 506 P.2d 136; Cross v. People, 122 Colo. 469, 223 P.2d 202; People v. Morgan, 79 Colo. 504, 246 P. 1024. The subject statute was obviously enacted to control contraband in penal institutions. As we read the statute, the legislature proscribed several enumerated items. In our view, it further provided that the warden could proscribe “other items of personal property” as the need arose. Thus, we hold that the clause, which requires a valid regulation to be posted, modifies only the phrase “other items of personal property.” Therefore, the only remaining issue is whether marijuana is within one of the enumerated items specifically proscribed by the legislature.

The contraband statute specifically provides that any “narcotic” is a contraband item. We believe that the legislature clearly intended to prohibit marijuana in penal institutions by the use of that term. We are aware that medically speaking marijuana is not in the narcotic family. Colorado Legislative Council Research Publication No. 127, Dangerous Drugs and Drug Abuse Control, pp. 3-8, 33 (1967). Nevertheless, the legal definition of narcotic drugs in Colorado includes cannabis, C.R.S. 1963, 48-5-1 (14)(a), and, of course, cannabis is commonly known as marijuana. People v. Stark, 157 Colo. 59, 400 P.2d 923. We believe this is sufficient notice that an attempt to furnish an inmate with marijuana is a violation of the contraband statute. People v. Young, 139 Colo. 357, 339 P.d 672.

Accordingly, the judgment of the trial court is affirmed.

MR. JUSTICE GROVES and MR. JUSTICE LEE specially concur. MR. JUSTICE ERICKSON dissents.

1 W. Schaefer, The Suspect and Society 25 (1967)