People v. Rodriguez , 1997 Colo. J. C.A.R. 1922 ( 1997 )

Chief Justice VOLLACK

concurring in part and dissenting in part:

The majority holds in part II of its opinion that when an officer possesses reasonable suspicion that a traffic offense has been committed and the officer has decided not to give the driver a ticket for the traffic offense, the officer may nevertheless request identifying information from the driver. I concur with this part of the majority’s opinion.

In part III of its opinion, the majority holds that in the current case: (a) the trooper possessed a reasonable suspicion that the van which Rodriguez drove was stolen; and (b) the trooper possessed a reasonable purpose in temporarily detaining Rodriguez to compare the VIN on the van’s registration card and the dashboard with a hidden VIN located on the van. I concur with this part of the majority’s opinion. However, the majority further holds that the scope of the investigatory stop in this case was not reasonably related to its purpose. I dissent to this part of the majority’s opinion because I believe that under the circumstances of this case, the scope of the investigatory stop was reasonably related to its purpose of establishing whether the van was stolen.

The majority further holds in part IV of its opinion that Rodriguez’ consent to search his van did not sufficiently attenuate the search from the trooper’s illegal investigatory stop; the majority thus affirms the suppression of the evidence. I dissent to this part of the majority’s opinion. In my view, Rodriguez’ consent to search his van sufficiently attenuated the search from any prior illegality so as to dissipate the taint of such illegality. Consequently, I believe the court of appeals erroneously ruled that the evidence obtained as a result of the search should have been suppressed.

Accordingly, I concur in part and dissent in part.

I.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court held that law enforcement personnel may, in compliance with the Fourth Amendment, conduct brief investigatory stops based on reasonable suspicion. Id. at 30-31, 88 S.Ct. at 1884-85. To justify an investigatory stop, three conditions must exist: (1) the officer must have a reasonable suspicion that criminal activity has occurred, is occurring, or is about to occur; (2) the purpose of the detention must be reasonable; and (3) the scope and character of the detention must be reasonable when considered in light of its purpose. See People v. Sutherland, 886 P.2d 681, 686 (Colo.1994).

This court has held that conditions which justify subjecting a person to an investigatory stop must be judged against an objective standard that takes into consideration the facts and circumstances known to the officer at the time of the intrusion and evaluates the purpose, scope, and character of the intrusion in light of those facts. See People v. Savage, 698 P.2d 1330, 1334-35 (Colo.1985). Because a limited seizure of the person is authorized on a standard less than that of probable cause, it must be brief in duration, limited in scope, and narrow in purpose. See People v. Tottenhoff, 691 P.2d 340, 343 (Colo.1984).

Despite Colorado’s established standard for determining whether the scope of an investigatory stop is reasonably related to its purpose, the majority sets forth a new test for making such a determination. Specifically, the majority holds that four factors must be considered in determining whether the parameters of an investigatory stop have been exceeded: (1) the length of the detention; (2) whether the officer diligently pursued the investigation during the detention; (3) whether the suspect was required to move from one location to another; and (4) whether there were alternative, less intrusive means available and whether the police acted unreasonably in failing to recognize or pursue such means. See maj. op. at-.

In my view, this court should not adopt this test if it becomes a litmus-paper test for determining whether the scope of an investigatory stop is proper. As the United States Supreme Court has stated, there is no “litmus-paper test for ... determining when a seizure exceeds the bounds of an investigative stop." 506, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983). Although the majority cites several Supreme Court cases in support of its four factors for determining the proper scope of an investigatory stop, these cases do not adopt a similar four-factor test and their holdings are specific to their facts. Florida v. Royer, 460 U.S. 491,

A.

The majority cites United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), for its holding that the detention in the current ease was prolonged and thus exceeded the proper scope of an investigatory stop. In Place, law enforcement officers stopped the defendant at an airport and obtained his identification and airplane ticket receipt. After the defendant refused to consent to a search of his luggage, the officers seized the defendant’s luggage for approximately ninety minutes to conduct a “canine sniff’ by a narcotics detection dog. The Supreme Court stated that “although we decline to adopt any outside time limitation for a permissible [investigatory] stop, we ... cannot [approve the length of the detention] on the facts presented by this case.” Id. at 709-710, 103 S.Ct. at 2646 (emphasis added). Thus, the holding in Place is fact-specific and does not set forth a time limitation for a proper investigatory stop.

The current case is distinguishable from Place in several ways. First, although the entire investigatory stop here lasted for approximately eighty-five minutes,¹ the initial forty-two minutes of this detention involved obtaining Rodriguez’ driver’s license, vehicle registration, and VIN. The trooper then discovered a discrepancy in the VIN and was unable to determine whether the van was stolen. As the majority acknowledges, the trooper’s actions during these initial forty-two minutes were reasonably related to the purpose of the investigatory stop.

As to the latter forty-three minutes of the investigatory stop, the trooper’s actions dur-Specifically, the trooper could not determine whether the van was stolen because he did not know the location of the hidden VIN. The trooper consequently determined that the best means of determining whether the van was stolen was by contacting a state patrol auto theft specialist who could tell him where the hidden VIN could be found. The trooper also decided that the state patrol headquarters would be a better location to conduct any further investigation and thus requested that Rodriguez follow him to the headquarters. The latter forty-three minutes of the detention was reasonably related to the purpose of the investigatory stop because it involved a reasonable means for determining whether the van was stolen. As such, I believe that the length of the investigatory stop in this ease was reasonable. mg that time were also reasonable.

B.

Additionally, the majority cites Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110, for its holding that the trooper did not diligently pursue the investigation in the current case. In Place, the defendant had aroused the suspicion of law enforcement officers at Miami International Airport. Because the Miami officers did not have time to detain the defendant before his flight departed to New York, they contacted officers in New York to relay their suspicions about the defendant. The officers in New York subsequently detained the defendant at New York’s La Guar-dia Airport. The Supreme Court held that the New York officers in that case did not diligently pursue their investigation of the defendant because the officers “knew the time of [the defendant’s] scheduled arrival at La Guardia [Airport], had ample time to arrange for their additional investigation at that location, and thereby could have minimized the intrusion on [the defendant’s] Fourth Amendment interests.” Id. at 709, 103 S.Ct. at 2645. Thus, the Supreme Court’s holding in Place regarding the officers’ lack of diligence was specific to the facts of that case.

In the current case, the majority holds that “[t]he return to Eagle for further investigation is not consistent with a diligent investigation.” Maj. op. at 1363. To the contrary, I believe that the return to Eagle was part of a diligent investigation because it allowed the trooper to efficiently contact a state patrol auto theft specialist who could tell him where the hidden VIN could be found. This made it possible for the trooper to efficiently determine whether Rodriguez’ van was stolen and thus constituted a diligent investigation.

C.

Moreover, the majority cites Royer, 460 U.S. 491, 103 S.Ct. 1319, for its holding that in the absence of safety concerns, moving a suspect from one location to another during an investigatory stop exceeds the reasonable scope of the- stop. However, in Royer, the Supreme Court simply held that “the record [did] not reflect-any facts which would support a finding that the legitimate law enforcement purposes which justified the detention in the first instance were furthered by removing” the defendant to a different location. Id. at 505, 103 S.Ct. at 1328. Thus, the Royer holding is specific to the facts of that case and does not provide a definitive rule on the effect of moving a suspect during an investigatory stop.

In the current case, the majority, holds that the trooper exceeded the proper scope of an investigatory stop by moving Rodriguez from the side of the highway to the state patrol headquarters in Eagle. However, I believe that such a move was properly within the scope of the investigatory stop in light of the trooper’s decision that the state patrol headquarters would be a better location to conduct further investigations, such as contacting a state patrol auto theft specialist who could tell the trooper where the hidden YIN could be found. Furthermore, the majority’s rejection of moving a suspect during an investigatory stop conflicts with this court’s holding in People v. Stevens, 183 Colo. 399, 407, 517 P.2d 1336, 1340 (1973). In Stevens, this court held that moving a suspect from one location to another during an investigatory stop was proper, regardless of safety concerns. See also Place, 462 U.S. at 705-06, 103 S.Ct. at 2643-44 (holding that during investigatory stop, police may transport seized property to another location).

D.

Finally, the majority cites Sharpe for its holding that in the current case, there were alternative, less intrusive means available to the trooper which he unreasonably failed to recognize and pursue. However, in Sharpe, the United States Supreme Court expressly warned that reviewing courts should not engage in creative post hoc evaluations of police conduct, but should simply determine whether the police acted reasonably in a given case. See Sharpe, 470 U.S. at 686-87, 105 S.Ct. at 1575-76 (1985). Here, although the trooper could have conducted the remainder of the investigatory stop at the Wolcott exit instead of at the state patrol headquarters in Eagle, the Supreme Court’s admonition in Sharpe precludes this court from imposing a post hoc requirement that the trooper pursue such an alternative. Rather, the inquiry is whether the trooper acted reasonably in conducting the remainder of the investigatory stop at the state patrol headquarters. As discussed above, I believe that the trooper acted reasonably in his investigation by moving the van to the headquarters.

In summary, the majority holds that the trooper possessed a reasonable suspicion that the van was stolen and a reasonable purpose in temporarily detaining Rodriguez. This holding is based on the fact that Rodriguez’ vehicle registration was handwritten and contained two discrepancies, along with the fact that a Nader Label was not found on the van’s door jamb. Nevertheless, the majority determines that the scope of the investigatory stop was not reasonably related to its purpose. I disagree because I believe that under the circumstances of this case, the scope of the investigatory stop was reasonably related to its purpose of establishing whether the van was stolen.

II.

Additionally, I disagree with the majority’s conclusion that Rodriguez’ consent to search his van did not sufficiently attenuate the prior investigatory stop from the search. Although I maintain that the investigatory stop in this case was proper, I believe that even if the stop was improper, Rodriguez’ consent to search his van sufficiently attenuated the investigatory stop from the search. '

If evidence is obtained as a result of a consent to search, such evidence is admissible if the consent is determined to be (a) not an exploitation of the prior illegality; and (b) voluntary. See People v. Traubert, 199 Colo. 322, 329, 608 P.2d 342, 347 (1980). The first prong has been recognized as the attenuation doctrine, which is an exception to the exclusionary rule and justifies admission of evidence even though the evidence is derived from information obtained in violation of the Fourth Amendment. See People v. Burola, 848 P.2d 958, 961 (Colo.1993). Under the attenuation doctrine:

if the prosecution can show that any connection between official illegality and the prosecution’s evidence has “become so attenuated as to dissipate the taint,” the evidence will be admissible.

People v. Jones, 828 P.2d 797, 800 (Colo.1992) (quoting Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963)). Whether the taint of the constitutional violation has dissipated is determined by examining the intervening events between the violation and the evidence sought to be introduced. See People v. T.C., 898 P.2d 20, 27 (Colo.1995). If the intervening events have dispelled the causal link so that the offered evidence is significantly free from contamination, then the taint of the constitutional violation has been removed. See id.

As to the second prong for admitting evidence obtained as a result of a consent to search, the'consent is voluntary if it is the product of free choice and not the result of duress, coercion, threats, or promises that are calculated to flaw the free and unconstrained nature of the decision. See Savage, 698 P.2d at 1334. Whether consent to search is voluntary is a question of fact to be determined from the totality of the circumstances. See People v. Carlson, 677 P.2d 310, 318 (Colo.1984). Where the record presents conflicting evidence, the trial court’s factual findings are entitled to deference unless the findings are so erroneous as to find no support in the record. See Salazar v. People, 870 P.2d 1215, 1221 (Colo.1994).

In the current case, the trooper indicated to Rodriguez that the investigatory stop was completed by returning Rodriguez’ driver’s license and vehicle registration and telling him that he was free to leave. The trooper then asked Rodriguez if he could search Rodriguez’ van, and Rodriguez consented. When Rodriguez gave his consent to search the van after being told that he was free to leave, he created an intervening event which sufficiently dispelled the link between the investigatory stop and the search. Under these facts, the evidence obtained as a result of the search was significantly free from contamination and the taint of the investigatory stop had been removed.

Moreover, the totality of the circumstances indicate that Rodriguez’ consent was given voluntarily. At the suppression hearing, the trial court heard testimony from both Rodriguez and the trooper as to Rodriguez’ ability to speak and understand English. Rodriguez testified that due to his limited ability to speak and understand English, he did not understand the trooper’s statement that Rodriguez was free to leave or the trooper’s request to search his van. In contrast, the trooper testified that Rodriguez appeared to understand the trooper’s request to search his van. Additionally, a videotape of the trooper’s request to search Rodriguez’ van and Rodriguez’ response was introduced into evidence. Based on this evidence, the trial court found that Rodriguez understood the trooper’s request to search his van. Because the trial court’s factual finding is supported by the record, this court should defer to the trial court’s finding on the issue of Rodriguez’ ability to understand the trooper’s request.

Given that Rodriguez understood the trooper’s request to search his van, the facts indicate that Rodriguez voluntarily gave his consent for the search. Here, the trooper asked Rodriguez if he could search Rodriguez’ van, and Rodriguez responded, “Sure.” The trooper then reiterated his request by asking, “Is it okay?” and Rodriguez again responded, “It’s okay.” Rodriguez then obtained his keys to the van and opened the back door of the van without the trooper asking him to do so. There is no evidence that the trooper used duress, threats, or promises to obtain Rodriguez’ consent to search his van. The facts of this case thus indicate that Rodriguez’ consent was the product of free choice and the record supports the trial court’s finding that Rodriguez’ consent was voluntary.

Accordingly, I believe that Rodriguez’ consent to search his van was voluntary and sufficiently attenuated the stop from the search so as to remove the taint of any prior illegality. The evidence obtained as a result of Rodriguez’ consent to search therefore should be admitted.

For the foregoing reasons, I concur in part and dissent in part. I am authorized to say that Justice MULLARKEY joins in this concurrence and dissent.

1 . Rodriguez was stopped at approximately 7:25 a.m. and was told that he was free to leave at approximately 8:50 a.m.