People v. in the Interest of D.F. , 1997 Colo. LEXIS 137 ( 1997 )

Justice SCOTT

specially concurring:

While I agree with the majority that the trial court’s order suppressing the prosecution’s evidence should be reversed, I write separately because, in my view, as an appellate court we are not competent to determine the demeanor or credibility of a witness who has testified before the trial court and therefore cannot decide from a reading of the transcript in chambers which matters testified to should be accepted, as fact. The majority crafts a rule whereby the absence of factual findings can be cured by an appellate court’s review of a witness’ testimony in the record.¹ Although such a rule may provide the correct result in the ease before us, I cannot join in this departure from the traditional roles of our trial and appellate courts regarding an historical fact leading to a conclusion of law. Thus, although I too would vacate the trial court’s order suppressing evidence, instead of engaging in fact finding, as does the majority, I would return the matter to the trial court for it to make further findings.

I.

On February 5, 1996, two Denver police officers received a call from the police dispatcher that three male juveniles were walking southbound in the area of 1800 South Stuart Street and that one of them was wearing a poncho and possibly carrying a BB air rifle. Based on that information, the officers proceeded to the general area described and observed three juveniles, approximately 12-13 years old, walking southbound through Harvey Park. One of the youths was wearing a brown poncho. The officers pulled onto the grass, stopped the youths, and ordered them to put their hands in the air. At that time, the officers observed the butt of a gun protruding from the waistband of D.F.’s pants and he was arrested.

At the suppression hearing, Officer Paul Murawski testified on direct examination that the anonymous tip had contained the approximate ages of the juveniles and the color of the poncho. On cross-examination, however, the officer revealed that he had not indicated in either his statement or his offense report that the anonymous tip contained this specific information. The officer also testified on direct examination that, when he arrived at the park, he observed D.F. walking stiff-legged, “such as to indicate that something was preventing him from bending his leg.” Again, cross-examination revealed that the officer’s observation of D.F. walking stiff-legged was not contained in either of the officer’s two written statements, one of which was a police report completed contemporaneous with the arrest, and was mentioned for the first time at the suppression hearing.

After hearing the officer’s testimony, the trial court entered its findings of fact and, citing Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), determined that the activity observed by the officers did not provide the amount of information necessary to establish the requisite quantum of suspicion to justify a stop. Importantly, the trial court did not indicate in its findings whether it found the officer’s testimony to be credible or incredible, in whole or in part. Nonetheless, the court concluded that “the officers did not have a specific and articulable basis in fact for suspecting that a crime [had] taken place, [was] in progress, or [was] about to occur. Therefore, the stop was not supported by reasonable suspicion and was in violation of [D.FJ’s Fourth Amendment rights.” Accordingly, the trial court suppressed the evidence and this interlocutory appeal followed.

II.

It is axiomatic under both the United States Constitution² and the Colorado Constitution ³ that before making an investigatory stop, an officer must reasonably suspect that an individual is engaged in, has engaged in, or is about to engage in criminal conduct. See Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968); Stone v. People, 174 Colo. 504, 509, 485 P.2d 495, 497 (1971). The constitutional permissibility of each stop must be determined on its own facts based upon the totality of the circumstances. See People v. Garcia, 789 P.2d 190, 193 (Colo.1990).

Here, we are dealing with a stop based upon information supplied by an anonymous tip. However, an anonymous tip, by itself, lacks sufficient indicia of reliability to establish reasonable suspicion. See People v. Contreras, 780 P.2d 552, 555 (Colo.1989). Therefore, when an investigatory stop is conducted pursuant to an anonymous tip, we have held that the tip must be corroborated by observations that establish a specific and articulable basis in fact to suspect that the individual is engaging in criminal conduct. Id.

The standards for evaluating whether a tip by an anonymous informant, as supplemented by some level of corroboration, is sufficient to create reasonable suspicion were set forth in People v. Garcia. As pertinent here, we noted in Garcia that corroboration of information that is “commonplace or unremarkable” or of “a pattern of conduct that is intrinsically unsuspicious” is not sufficient in character or extent to suggest reliably that the informant had particularized knowledge of the defendant’s activities. Garcia, 789 P.2d at 193. Thus, the reasonable suspicion which justifies an investigatory stop cannot be premised on an anonymous tip that is corroborated only by unremarkable, everyday activity. 7⅞ see also White, 496 U.S. at 332, 110 S.Ct. at 2417.

III.

In the instant case, the only testimony presented at the suppression hearing was from one of the police officers who made the initial stop and arrest of D.F. After hearing the direct and cross-examination testimony, the trial court entered its findings of fact and concluded that the activity observed by the police officers did not establish “the requisite quantum of suspicion to justify a stop.”⁴ The court based its conclusion on the fact that the tip from the unknown informant “did not contain inside information or future actions not easily predicted, but only easily obtained facts and conditions existing at the time of the tip.” See White, 496 U.S. at 332, 110 S.Ct. at 2417; Garcia, 789 P.2d at 193. Importantly, the trial court did not include in its findings the fact that the police officer had observed D.F. walking with a stiff leg.

Based on its review of the record, however, the majority here engages in additional fact finding to support its opposite conclusion that “the totality of the circumstances in this case demonstrates that the reliability of the anonymous tip was adequately corroborated by on-the-scene observations of the police officers, entailing an articulable and specific basis in fact to suspect that one of the youths could be carrying a concealed weapon.” Maj. op. at 13. In so holding, the majority finds, as fact, a corroborating circumstance not mentioned by the trial court, i.e., the officer’s observation of D.F. walking stiff-legged. While there is evidence in the record upon which the majority relies, it is patently dear that no such finding of fact was made by the trial court. See id. at 14-15. Nevertheless, the majority states that “[the fact of the stiff leg] corroborated the reliability of the tip which alleged that a young male was carrying a concealed weapon.” Id. In my view, it is inappropriate for the majority to consider such testimony as fact.

I agree with the majority that where the findings of the trial court are supported by the record, those findings must be accepted on review unless they are clearly erroneous. See maj. op. at 14; M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1384 (Colo.1994). I also note that we are to accept the findings of the trial court when supported by the record for the very reason that a trial court is especially well positioned and better able than appellate courts to determine the credibility of witnesses. See University of Colorado v. Derdeyn, 863 P.2d 929, 938 (Colo.1993). Nonetheless, these cases do not support the proposition for which they are offered and the majority fails to provide other authority for such a result.

We have, for example, consistently disapproved of the substitution of new factual findings by reviewing courts for those made by the trial court. See Page v. Clark, 197 Colo. 306, 313, 592 P.2d 792, 796 (1979). Where the record clearly supports the findings of the trial court, it is inappropriate to allow a reading of a transcxipt, accepting all statements of a witness as true, to serve as a basis for rejecting credibility determinations implicit in the trial court’s factual findings. See People v. Dover, 790 P.2d 834, 835 (Colo.1990). It does not necessarily follow that because a finder of fact accepts a portion of relevant testimony to be credible, it also determines that the entire testimony is similarly competent. In this ease, for example, it is reasonable to conclude that the trial court found part of the officer’s testimony incredible.

While I agree that the observation of D.F. walking with a stiff leg combined with the informant’s tip that the juveniles might be carrying a concealed weapon is critical to the determination of whether the requisite suspicion existed to make the stop, I, unlike the majority, cannot rely on that factor because the trial court did not include it in its findings or indicate in any way how it viewed that portion of the officer’s testimony. As noted above, the trial court stated only that the officers drove up, noted three juveniles walking through the park, and ordered them to stop. See supra note 4. Thus, based upon the trial court’s limited findings and the principles articulated in Garcia, I believe that the matter must be returned to the trial court for additional findings because, without further clarification regarding the factor of the stiff leg, the only facts accepted in the record as corroborated by the officer were, indeed, “intrinsically unsuspicious.” Garcia, 789 P.2d at 193.

The majority, however, determines that remand for further findings is unnecessary because the testimony of the officer regarding the stiff leg was uncontradicted. See maj. op. at 14-15. However, whether or not this testimony is uncontradicted has no bearing on the issue before us. Simply because the officer’s testimony is uncontested does not mean that the trial court necessarily found it credible. See, e.g., Pioneer Constr. Co. v. Richardson, 176 Colo. 254, 259, 490 P.2d 71, 74 (1971) (trial court, as trier of fact, is not bound to accept even uncontradieted testimony as fact); Robbins v. People, 142 Colo. 254, 263, 350 P.2d 818, 823 (1960) (a court need not accept a statement as true because there is no direct testimony contradicting it). The testimony regarding the stiff leg is a critical factor in our determination here and we have no basis to determine what weight, if any, the trial court gave to that testimony.

Indeed, based on the record before us, it is entirely possible that the trial court found the officer’s testimony regarding the stiff leg to be incredible and therefore purposefully chose not to include that fact in its findings. On cross-examination, the juvenile’s attorney elicited testimony not entirely consistent with the officer’s testimony on direct examination that he observed the juvenile walk stiff-legged.⁵ See Robbins, 142 Colo. at 263, 350 P.2d at 823 (reasonable inferences from circumstances tending to discredit or weaken uncontradieted testimony should be considered). If such is the case, because an appellate court may not speculate on witness credibility or resolve evidentiary conflicts, we as the reviewing court are unable to consider the trial court’s credibility determination. See People v. Jordan, 891 P.2d 1010, 1019 (Colo.1995) (Kirshbaum, J., dissenting); People v. Medina, 185 Colo. 183, 184, 522 P.2d 1233, 1234 (1974).⁶ I therefore disagree with the majority’s characterization of the officer’s testimony regarding the stiff leg as “uncon-tradicted historical fact which in context clearly and ineluctably leads to a legal conclusion opposite to that reached by the trial court.” Maj. op. at 15.

Furthermore, the majority’s reliance on our decisions in People v. Dracon, 884 P.2d 712 (Colo.1994), and People v. Johnson, 865 P.2d 836 (Colo.1994), is misplaced. In both of those eases, the trial court made sufficient findings of fact to enable us to engage in meaningful appellate review. For example, in Dracon, we held only that “the district court’s findings of fact are supported by competent evidence in the record and ... the district court applied the correct legal standard in resolving the issue of custodial interrogations.” 884 P.2d at 718. Moreover, unlike Dracon, where our review of a videotape of an interrogation allowed us to “view[ ] ... the officer’s demeanor and conduct,” maj. op. at 14, here not only are we relying on a reading of testimony in the record, but, in doing so, we are not able to review Officer Murawski’s “demeanor and conduct” on the witness stand. Similarly, in Johnson, we stated that the trial court “made sufficient findings of fact to allow [us] to engage in meaningful appellate review” and also that “[t]he court’s oral order suppressing the seized cocaine provides a thorough recitation of the facts regarding the officers’ contact with Johnson.” 865 P.2d at 840. I can find no support in these eases for the majority’s new rule of fact finding here.

Here, it is clear that we are dealing with incomplete, rather than erroneous findings.⁷ The majority is therefore forced to supplement the trial court’s findings of fact in order to support its opposite conclusion. By doing so, however, the majority fails to recognize the proper place of the trial court in making credibility determinations. See People v. Franklin, 645 P.2d 1, 4 (Colo.1982) (the determination of the credibility of witnesses is a matter solely within the province of the finder of fact). The trial court heard the full testimony of the officer and did not choose to include the information regarding the stiff leg as part of its findings. Thus, the trial court either did not find the testimony of the officer credible, in which case we should defer to that determination, see Franklin, 645 P.2d at 4, or it considered that factor in its analysis under Alabama v. White, in which case we could determine that the trial court erred as a matter of law.

IV.

A.

Furthermore, I am compelled to note that I disagree with the majority’s assertion that, when analyzing the reasonableness of an investigatory stop, “the level of the ... potential danger revealed [is] to be considered.” Maj. op. at 16. In so holding, the majority misconstrues the term “content” to include the level of potential danger and, by so doing, effectively lowers the constitutional standard for determining the reasonableness of an investigatory stop based upon the nature of the crime alleged by the anonymous tipster.

In my view, there is no support for this unique approach to Fourth Amendment analysis in our jurisprudence. In Alabama v. White, the Supreme Court noted that “[reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability.” White, 496 U.S. at 330, 110 S.Ct. at 2416. However, the Court defines its use of the term “content” by saying that “[b]oth factors — quantity and quality — are [factors] ... that must be taken into account when evaluating whether there is reasonable suspicion.” Id. (emphasis added). Thus, by its reference to the “content” of the tip, the Court was not referring in any respect to the nature of the crime reported, as the majority implies, but was instead concerned solely with the quantity, or the specificity of the information provided.

Likewise, I do not find persuasive the majority’s citation to several out-of-state cases which it reads to imply that, regardless of the reliability of the tip or the existence of reasonable suspicion, a police officer’s investigatory stop may be “justified [because] the alternatives in such cases involve significant risk.” Maj. op. at 16. The cases cited by the majority are distinguishable. For example, in United States v. McClinnhan, 660 F.2d 500, 502-03 (D.C.Cir.1981), the court noted that the tip was corroborated in “every significant detail,” that the officer’s suspicion had an “objective foundation,” and that the officers had a “reasonable suspicion that [the defendant] was armed.” Similarly, in People v. Smithers, 83 Ill.2d 430, 47 Ill.Dec. 322, 326, 415 N.E.2d 327, 331 (1980), the court found sufficient articulable facts to create a reasonable belief that an offense had been or was about to be committed and that people were in danger of being harmed. And, in State v. Kuahuia, 62 Haw. 464, 616 P.2d 1374, 1375 (1980), the content of the tip was substantial in that it contained a great deal of detail— e.g., time, place, personal observation of the weapon in the vehicle, and the license plate number of the vehicle. Moreover, to the extent that those case contain dictum which suggests that the possible presence of a firearm alone mandates an investigative stop, I would hope that this court will decline to follow them.

Although I recognize and join in the serious concern regarding public safety, I cannot agree that, in response, we must apply our Fourth Amendment analysis on an ad hoc basis, each time assessing the potential harm of an officer’s inaction, thereby justifying an otherwise plainly unconstitutional stop. Indeed, the majority reads the Fourth Amendment to say that “the right of the people to be secure in their persons ... against unreasonable searches and seizures shall not be violated, except in circumstances involving a gun.” Such a result, I fear, will fall prey to a slippery slope of exceptions, effectively eviscerating our body of law surrounding the Fourth Amendment and investigatory stops. For that reason, I disagree with that portion of the majority’s opinion contained in part II at pages 15-16.

B.

Lastly, I note this case is not finally resolved by what we do today, and, in any event, must be returned to the trial court for further proceedings. While the majority’s fact finding rule is expedient, it also works to avoid one of the two possible results that could occur pursuant to my analysis: One, if the trial court concludes, on remand, that the officer’s testimony as to the stiff-legged walk is credible, it then must vacate its earlier order, the evidence previously suppressed ■will be admissible, and the matter would proceed to trial. Two, if the trial court concludes, on remand, that the officer’s testimony is incredible, its order may stand and the evidence remain suppressed. It is only the latter which the majority avoids. Having confidence that the trial court can complete its work without significant effort or the necessity of conducting a hearing, I am comfortable with either outcome. Because we are focused on a legally operative fact, “key” to our ultimate decision, and because it relates to a fundamental right, I prefer having the trial court make its findings explicit.

The Fourth Amendment provides that every citizen shall “be secure ... against unreasonable searches and seizures.” To the extent the state violates this constitutional promise, the independent, neutral magistrate prohibiting the use of illegally obtained evidence is the means by which we vindicate these fundamental rights. I have always come to understand that these rights, as fundamental as any in our original documents, are to remain inviolate — certainly not to be cast aside for judicial economy or expediency. It is this conviction that places me at a loss as to how a remand for fact finding dependent upon witness credibility is of danger to “the interests of justice in the context of an interlocutory appeal.” Maj. op. at 14-15.

In the end, lest we forget, we not only vindicate the rights of the accused before us but those of every citizen who may be illegally stopped by the police but who, upon an intrusion that fails to produce a concealed weapon or other incriminating evidence, is never charged or tried. When called upon to vindicate fundamental rights, the stakes are high. Thus, in my view, when we alter process for expediency’s sake, we reduce unnecessarily the security promised by government through the Fourth Amendment.

V.

In sum, it is my view that from the record before us, we cannot tell whether the trial court considered the factor of the stiff leg, and if so, what effect that consideration had on its findings of fact and conclusions of law regarding the investigatory stop. In the absence of sufficient findings of fact by the trial court concerning this legally significant circumstance under which the investigatory stop of D.F. was made, our appellate function is hindered. When confronted by insufficient findings by the trial court, it is inappropriate for an appellate court to supplement the record with its own resolution of a key, operative fact which necessarily rests on the credibility of a witness and controls a conclusion of law.

Accordingly, although I agree with the majority that the trial court’s ruling should be reversed, in my view, we are not empowered by key uncontradicted testimony or convenience to make factual findings and therefore I would remand to the trial court for further findings.

1 . I address here the trial court's omission of a critical, or legally operative, fact. However, I also note that there may be uncontested facts in the record that we can accept without guidance by the trial court merely because they are not legally operative, i.e., capable of altering the ultimate conclusion of law.

2 . The Fourth Amendment to the United States Constitution provides in pertinent part: "The right of the people to be secure in their persons ... against unreasonable searches and seizures shall not be violated.”

3 . Article II, § 7, of the Colorado Constitution also provides that "[t]he people shall be secure in their persons ... from unreasonable searches and seizures.”

4 . In its written findings, the trial court characterized the observations of the officers as follows:

The officers responded to the area and noted three juveniles 12-13 years old walking in Harvey Park. One of the juveniles was wearing a brown poncho. The police officers drove their marked police car onto the law and exited the car. At that point, without further inquiry, the officers ordered the juveniles to stop. [D.F.] stopped and put his hands in the air. The other two juveniles continued walking. [D.F.] put his hands up and turned around revealing a shotgun in his waistband.

5 . The record reveals that, on cross-examination, the officer admitted that his observation regarding the stiff leg had not been included in either his written statement or in the police report and was, in fact, revealed for the first time during his testimony at the suppression hearing.

6 . I am not, however, suggesting that the non-inclusion of a pivotal fact necessarily implies that the trial court found it incredible. See maj. op. at 14. Rather, I am simply noting that because the determination of whether this stop was constitutionally permissible turns on this testimony, we must be certain of how the trial court re- . ceived it. Likewise, however, X do not believe it is correct for the majority to imply that by not including the fact of the stiff leg in its findings, the trial court necessarily found the officer's testimony to be credible. See id.

7 .The majority sets forth precedent regarding erroneous or unsupported findings. However, we are not faced here with a situation where the trial court's findings are "clearly erroneous” or “inconsistent with or unsupported by” the evi-dentiary record. Maj. op. at 14 (citing M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1384 (Colo.1994); People v. Quezada, 731 P.2d 730, 732 (Colo.1987)). Thus, contrary to the suggestion by the majority, we are not dealing here with an erroneous conclusion of law that is subject to correction by a reviewing court.