People v. Weston , 18 Brief Times Rptr. 494 ( 1994 )

Justice MULLARKEY

delivered the Opinion of the Court.

In this interlocutory appeal, taken pursuant to C.A.R. 4.1 and section 16-12-102(2), 8A C.R.S. (1986 & 1993 Supp.), the People seek reversal of an order of the Adams County District Court suppressing evidence seized from the passenger compartment of an automobile during an investigatory stop and detention of the occupants of the vehicle. We conclude that, under the specific circumstances of this case, the police officer had a reasonable basis for conducting a protective search of the passenger compartment of the vehicle in the interest of her own safety. Accordingly, we reverse the order of suppression and remand the ease to the district court for further proceedings.

I

At approximately 10:45 p.m. on September 18, 1992, two officers of the Aurora Police Department advised on-duty patrol officers to be alert for a dark-colored (possibly brown), older-model Datsun. The vehicle’s occupants, described as three black males, were suspected of being involved in a stabbing that had just occurred in the 1600 block of Beeler Street.

One hour and fifteen minutes later, at approximately 12:01 a.m. on September 19, 1992, Officer Shannon Lucy of the Aurora Police Department was on routine patrol in the 1600 block of Florence Street when she observed a brown vehicle which looked like a Datsun. The vehicle, owned and driven by the defendant, Darin Weston, was occupied by three black males travelling westbound on East 16th Avenue. This area is approximately six to eight blocks from where the stabbing had occurred.

Based on the information previously aired by the officers who were at the scene of the stabbing, Lucy decided to stop the vehicle. Before stopping the vehicle, however, she requested backup officers for reasons of personal safety. After two officers arrived to cover Lucy, she stopped the vehicle and asked for identification from' Weston and the two passengers. She then asked each person to exit the vehicle one at a time and conducted a pat-down search for weapons.

While the occupants were being observed by the backup officers, Lucy searched the vehicle for weapons. At the suppression hearing, Lucy testified that it was general procedure to search a car for weapons “if I have reason to be concerned that there are weapons in the car.” According to Lucy, “because of the length of time that it takes to get clearances and IDs on people, ... I’ll search the vehicle for weapons and for my own safety in those circumstances; and then they are allowed to be seated back in the car if everything’s okay.” Lucy further explained that she would search a vehicle for weapons as a “courtesy” to the vehicle’s occupants prior to contacting the police dispatcher for clearances. “[I]t keeps them from having to stand out on the sidewalk for however long this thing takes to get through.”

While inspecting the passenger compartment of Weston’s ear, Lucy searched a plastic map pocket approximately three inches wide and six to eight inches deep on the driver’s side door. Lucy described the map pocket as big enough to “get your hand all the way in” and big enough to hold a gun. Lucy found two baggies towards the bottom of the map pocket, one of which contained crack cocaine and the other marihuana. Weston was charged with the unlawful possession of a schedule II controlled substance (cocaine)¹ and with the unlawful possession of less than one ounce of marihuana.²

On June 3, 1993, Weston filed a motion to suppress evidence and statements which the officers had obtained at the time of his arrest. In his motion, Weston alleged that the evidence seized was the product of an unconstitutional stop and an unconstitutional search and seizure under the Fourth Amendment of the United States Constitution and Article II, Section 7 of the Colorado Constitution. At the hearing on Weston’s motion, the district court ruled that Lucy had a reasonable and articulable suspicion which justified the investigatory stop of Weston’s car. However, the district court concluded that Lucy exceeded the permissible scope of the stop when she searched the car because the search was “based upon a convenience of the [vehicle’s occupants] ... so that they would not have to remain out in the cold.” The district court then suppressed the evidence of the crack cocaine and the marihuana from use at trial.

II

A police officer having less than probable cause for arrest may conduct an investigatory stop and a limited search of the person for weapons provided that the following requirements are met: (1) there must be an articulable and specific basis in fact for suspecting that criminal activity has occurred, is taking place, or is about to take place; (2) the purpose of the intrusion must be reasonable; and (3) the scope and character of the intrusion must be reasonably related to its purpose. People v. Martinez, 801 P.2d 542, 544 (Colo.1990); People v. Ratcliff, 778 P.2d 1371, 1376 (Colo.1989); People v. Cagle, 688 P.2d 718, 721 (Colo.1984) (Cagle I); People v. Lewis, 659 P.2d 676, 681 (Colo.1983); People v. Tate, 657 P.2d 955, 958 (Colo.1983).

, During the course of an investigatory stop, a police officer also may search those areas of the passenger compartment in which a weapon may be placed or hidden. Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 3480-81, 77 L.Ed.2d 1201 (1983); People v. Melgosa, 753 P.2d 221, 225 (Colo.1988). Such a limited intrusion is justified by the particular hazards confronting a police officer in roadside encounters with drivers and passengers of automobiles. Even though the officer may have physical control of the suspect, the suspect still can break away from police control and retrieve the weapon from his automobile, or may have access to weapons if permitted to return to his car before the investigatory stop is over. Long, 463 U.S. at 1051-52, 103 S.Ct. at 3481-82; Mel-gosa, 753 P.2d at 226.

However, a valid stop of a vehicle based on reasonable suspicion does not mean that the police automatically may search the passenger compartment for weapons. Long, 463 U.S. at 1049 n. 14, 103 S.Ct. at 3481 n. 14; Martinez, 801 P.2d at 544; Ratcliff, 778 P.2d at 1376. Instead, a police officer may conduct a search of the passenger compartment only if he or she possesses a reasonable belief based on specific and articulable facts that the suspect is dangerous and may gain immediate control of weapons. Long, 463 U.S. at 1049, 103 S.Ct. at 3480-81; People v. Corpany, 859 P.2d 865, 869 (Colo.1993); People v. Cagle, 751 P.2d 614, 617 (Colo.), appeal dismissed sub nom. Cagle v. Colorado, 486 U.S. 1028, 108 S.Ct. 2009, 100 L.Ed.2d 597 (1988) (Cagle II). See also § 16-3-103(2), 8A C.R.S. (1986) (providing that officers may conduct a pat-down search if they reasonably suspect that their personal safety requires it).

If there is a reasonable basis to suspect that the person might be armed and dangerous, the search still must be limited in scope and confined to areas in which a weapon might be placed or hidden. Corpany, 859 P.2d at 869; Martinez, 801 P.2d at 544; Ratcliff 778 P.2d at 1377. However, the officer conducting the search is permitted to make a cursory examination of any object discovered during the search for the purpose of determining whether the object is a weapon. Martinez, 801 P.2d at 544; Ratcliff 778 P.2d at 1377; Melgosa, 753 P.2d at 228. If the officer has probable cause to believe that the object is incriminating, he or she then may lawfully seize the object without a search warrant under the “plain view” doctrine. Melgosa, 753 P.2d at 226. See also Long, 463 U.S. at 1050, 103 S.Ct. at 3481 (stating if an officer discovers contraband other than weapons during a legitimate protective search, “he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances”); Texas v. Brown, 460 U.S. 730, 739, 103 S.Ct. 1635, 1541-42, 75 L.Ed.2d 502 (1983) (plurality opinion).

Ill

With these principles in mind, we consider whether the conditions required for a protective search of the passenger compartment of an automobile were satisfied in this case.

A

The first condition for a valid investigatory stop and a protective search for weapons is the existence of a specific and articula-ble basis in fact for suspecting that the person subjected to the stop has engaged in, is presently engaging in, or is about to commit a criminal act. E.g., Ratcliff, 778 P.2d at 1378; People v. Hughes, 767 P.2d 1201, 1203 (Colo.1989). Weston argues that the suppression order should be affirmed since the police did not have a reasonable and articula-ble suspicion that he may have been involved in criminal activity when they stopped his car. We decline to address this question in an interlocutory appeal under C.A.R. 4.1.

We have often stated that C.A.R. 4.1 limits the types of rulings from which interlocutory appeals can be taken and cannot be employed to obtain pre-trial review of issues not covered by the rule. See, e.g., People v. Dailey, 639 P.2d 1068, 1076 n. 8 (Colo.1982). For our purposes, this means that a ruling granting a defendant’s pre-trial motion to suppress evidence is subject to interlocutory appeal by the state. C.A.R. 4.1 (stating that “[t]he state may file an interlocutory appeal in the supreme court from a ruling of the district court granting a motion ... made in advance of trial by the defendant for return of property and to suppress evidence”).

A defendant, however, is not entitled to interlocutory relief under C.A.R. 4.1.³ E.g., Cagle I, 688 P.2d at 721 n. 10; People v. Barton, 673 P.2d 1005, 1006 n. 1 (Colo.1984); People v. Weeams, 665 P.2d 619, 623 (Colo. 1983); People v. Traubert, 199 Colo. 322, 330, 608 P.2d 342, 347 (1980). In other words, if the district court resolves a suppression issue against the defendant, we have no jurisdiction to address it in an interlocutory appeal. People v. Griffin, 727 P.2d 55, 57 n. 4 (Colo. 1986); People v. Oates, 698 P.2d 811, 815 n. 5 (Colo.1985).

In this case, the district court determined that the police had a reasonable and articula-ble basis for stopping Weston. Because the district court resolved this issue in favor of the prosecution, we cannot consider the issue in an interlocutory appeal pursuant to C.A.R. 4.1. Therefore, we must assume for purposes of this appeal that the initial stop of Weston was proper.

B

Having assumed that the officer validly stopped Weston, we next must consider whether the purpose of the search was reasonable. As previously stated, police officers may not conduct warrantless searches of a suspect’s car whenever they conduct an investigatory stop. E.g., Long, 463 U.S. at 1049 n. 14, 103 S.Ct. at 3481 n. 14; Ratcliff, 778 P.2d at 1376. Rather, a search conducted in conjunction with an investigatory stop is permissible solely for the purpose of discovering weapons. Long, 463 U.S. at 1049, 103 S.Ct. at 3480-81; Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917 (1968); Terry v. Ohio, 392 U.S. 1, 26, 88 S.Ct. 1868, 1882-83, 20 L.Ed.2d 889 (1968); Cagle I, 688 P.2d at 722. In addition, a protective search is permitted only when the officer has a reason to believe that the suspect might be armed and dangerous. Martinez, 801 P.2d at 544. This is because the only justification for this type of search is the protection of the officer and others present in the vicinity, as opposed to the preservation of evidence or the search for probable cause. Terry, 392 U.S. at 29, 88 S.Ct. at 1883-84; Martinez, 801 P.2d at 544.

The district court concluded that Lucy’s search of Weston’s automobile was invalid because “there’s been no showing of the necessity to come about or enter the motor vehicle of Mr. Weston.” According to the district court, the purpose of the search was not the officer’s safety, but the convenience of the occupants “so that they would not have to remain out in the cold” while the officer obtained clearances.

Although we must defer to a district court’s findings of historical fact, an ultimate conclusion of constitutional law that is inconsistent with or unsupported by evidentiary findings, or the application of an erroneous legal standard to the facts of the case, is subject to correction by a reviewing court. People v. Rahming, 795 P.2d 1338, 1341 (Colo.1990); People v. Quezada, 731 P.2d 730, 732-33 (Colo.1987). In our opinion, the district court’s conclusion concerning Lucy’s purpose in performing the search is not supported by the record.

In order to ascertain the purpose of an intrusion, a court may consider the officer’s declarations and other evidence of the officer’s intention at the time of the search. Cagle I, 688 P.2d at 722. However, an officer’s subjective intent is not critical to a resolution of this issue. Ratcliff, 778 P.2d at 1377; People v. Lagrutta, 775 P.2d 576, 580 (Colo.1989); Hughes, 767 P.2d at 1205; Tate, 657 P.2d at 960 (Lohr, J., concurring). What is determinative is whether the purpose of the intrusion was objectively reasonable in light of the circumstances confronting the officer at the time of the search. Ratcliff, 778 P.2d at 1379.

In this case, Officer Lucy’s concern for her own safety was adequately supported by her testimony at the suppression hearing. Lucy testified that she searched Weston’s car to find weapons, and the events surrounding the search support the view that the search had a legitimate protective purpose. For example, Lucy called a backup to the scene in order to protect her safety, and she waited for backup to arrive before searching Weston or his car. See Cagle II, 751 P.2d at 618. Once the other officers arrived, Lucy asked the occupants of Weston’s car to exit the vehicle one at a time and conducted a pat-down search of each person for weapons. In addition, the occupants were watched by the backup officers while Lucy searched the car. Therefore, we do not have a situation where a single officer turns her back on three possibly armed suspects in order to search the passenger compartment of a car, thus eviscerating any claim that the search was undertaken for reasons of personal safety. See Cagle I, 688 P.2d at 722.

Lucy did search the vehicle as a courtesy to the occupants before completing her investigation. However, this does not mean, as the district court believed, that the search itself lacked a valid protective purpose. A limited intrusion will be upheld on the basis of its objective reasonableness even though the officer may have harbored a subjective intent to engage in a more extensive intrusion than was warranted under the circumstances. Ratcliff, 778 P.2d at 1377. Moreover, the fact that Lucy would not allow the occupants to re-enter the vehicle without a search for weapons further demonstrates that she was concerned for her safety. After all, if Lucy had allowed the occupants to return to the ear prior to the search, then the occupants would have had access to any weapons inside. See Long, 463 U.S. at 1052, 103 S.Ct. at 3482.

More importantly, the district court found that Lucy reasonably suspected that the occupants of Weston’s vehicle had been involved in a stabbing which took place in the same area a short time earlier. Since a stabbing is a violent crime involving a weapon, surely it was reasonable for Lucy to believe that she might be dealing with potentially armed and dangerous persons.⁴ See Tate, 657 P.2d at 959 (Because the officer reasonably suspected that the defendant might be engaged in criminal conduct, it was reasonable to believe that he might be dealing with an armed and dangerous person. Therefore, a protective search for weapons was appropriate.); People v. Martineau, 185 Colo. 194, 198, 523 P.2d 126, 128 (1974) (same). See also Lewis, 659 P.2d at 682 (stating police officers may search for a weapon in the area of the driver’s seat if they have reasonable suspicion to stop and temporarily detain the driver and are cautioned beforehand that he may be armed). Under these circumstances, we disagree with the district court and hold that Officer Lucy was justified in conducting a limited search of Weston’s ear for weapons.

C

The final question presented is whether the scope and character of the search were reasonably related to the purpose of ensuring Lucy’s safety. In this case, the search consisted of Officer Lucy’s inspection of the open map pocket located on the driver’s side door and her discovery⁵ of two transparent baggies containing crack cocaine and marihuana. Although the district court did not specifically discuss this issue in ruling on the motion to suppress, we are satisfied that Lucy’s examination of the map pocket and the contents of the baggies did not exceed the constitutionally permissible limits of a protective search for a weapon.

Because the protective search of an automobile is justified solely by the need to protect officers and others present, it is limited to those areas in which a weapon may be placed or hidden. Corpany, 859 P.2d at 869 (quoting Long, 463 U.S. at 1049, 103 S.Ct. at 3481). In this ease, the undisputed testimony of Officer Lucy establishes that the open map pocket in Weston’s car was just such an area. Lucy testified that the map pocket was six to eight inches deep and approximately three inches wide. She further described the pocket as big enough to “get your hand all the way in” and big enough to hold a gun. Moreover, the map pocket was located in the driver’s side door, and in the past we have held that “a contemporaneous, cursory examination for a weapon in the area of the driver’s seat is reasonably related in scope and character to ensuring the officers’ safety during the period of detention.” Lewis, 659 P.2d at 682.

Weston does not contest Lucy’s search of the map pocket, but argues that Lucy had no right to remove the baggies from the map pocket unless she reasonably suspected that they contained a weapon. According to Weston, it was not objectively reasonable for Lucy to believe that the baggie of crack cocaine contained a weapon since the baggie and its contents weighed only 2.2. grams. We disagree with Weston’s analysis.

Officers conducting a search are permitted to make a cursory examination of any objects discovered during the search of the passenger compartment in order to assure themselves that the objects are not dangerous. Martinez, 801 P.2d at 544; Ratcliff, 778 P.2d at 1377; Melgosa, 753 P.2d at 228. This does not mean, however, that the police automatically may open all containers discovered in the passenger compartment during a protective search. Corpany, 859 P.2d at 870. When the object recovered is a closed container, the officer may open the container to examine its contents only if she can point to specific and articulable facts supporting a reasonable suspicion that the container poses a danger to the officer and others nearby. Id. at 871; Martinez, 801 P.2d at 545; Rat-cliff, 778 P.2d at 1380. However, “when a container is ‘not closed,’ or ‘transparent,’ ... the container supports no reasonable expectation of privacy and the contents can be said to be in plain view.” United States v. Donnes, 947 F.2d 1430, 1437 (10th Cir.1991). See also People v. Casias, 193 Colo. 66, 71 n. 4, 563 P.2d 926, 930 n. 4 (1977); People v. Nefzger, 173 Colo. 199, 201, 476 P.2d 995, 996 (1970) (holding plastic bag of marihuana to be evidence in plain view).

In maintaining that the prosecutor must establish that Lucy had a reasonable suspicion that the baggies contained a weapon, Weston in essence is arguing that the map pocket was a “closed container.” However, this view is contrary to the evidence presented at the suppression hearing. As Officer Lucy testified, the map pocket had an opening approximately three inches wide, and thus was not a “closed container.” Therefore, Lucy lawfully could examine the contents of the pocket without a warrant. Cf. Cagle I, 688 P.2d at 723 (holding officer could pull out a shirt crammed under a passenger’s seat while conducting a protective search for weapons).

Accordingly, the suppression order is reversed and the case is remanded to the district court for further proceedings consistent with this opinion.

ERICKSON, J., dissents, and SCOTT, J., joins in the dissent. LOHR, J., does not participate.

1 . § 18-18-405, 8B C.R.S. (1992 Supp.).

2 . § 18-18-106(1), 8B C.R.S. (1986).

3 . In People v. Traubert, 199 Colo. 322, 608 P.2d 342 (1980), we held that C.A.R. 4.1 did not deny a defendant’s equal protection rights by allowing only the prosecution to enter an interlocutory appeal.

[T]he prosecution and the defendant are [not] similarly situated in a criminal trial. Since the prosecution is precluded from placing a defendant in double jeopardy after a verdict has been rendered, its only meaningful avenue of appeal must be found in a pre-judgment proceeding. The provisions of C.A.R. 4.1 do not interfere with the defendant's rights to appeal his conviction after a verdict has been reached,

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Id. at 330, 608 P.2d at 348.

4 . In his Answer Brief before this court, Weston concedes that a protective search of his car was "certainly valid" if reasonable suspicion existed to believe that the occupants were involved in the earlier stabbing and were still armed at the time of the search. As discussed supra in part III A, we must assume for purposes of this appeal that Officer Lucy had a reasonable and articulable basis for stopping Weston. In addition, even though no weapons were found in the initial pat-down of the vehicle’s occupants, there was nothing in Lucy’s initial confrontation with the occupants to dispel her fears that they could be armed and dangerous. See Terry, 392 U.S. at 30, 88 S.Ct. at 1884-85. On the contrary, since a weapon was not found on Weston's person, it was logical for Lucy to reason that the weapon was probably in the passenger compartment of the automobile. This is especially true since the persons involved in the stabbing fled the scene of the crime in a car resembling Weston’s car.

5 . It is unclear from the record how Lucy discovered the two baggies; i.e., whether she looked into the map pocket with a flashlight and saw the baggies, whether she felt in the map pocket and simply pulled out the baggies, or whether she felt the baggies and suspected that they contained drugs before removing them from the map pocket. For purposes of this appeal, we will assume (as Weston does) that Lucy pulled the baggies out of the map pocket without first identifying their contents.