v. Ashford

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ADVANCE SHEET HEADNOTE
March 2, 2020
2020 CO 16No. 19SA226, People v. Ashford—Fourth Amendment—Scope of Investigatory Stops.
After a police officer felt a pill bottle in the defendant’s jacket during the course of
an investigatory stop, the officer asked the defendant, “I know this is a pill bottle, what
is it?” In response, the defendant removed a pill bottle from his pocket and showed it to
the officer, who could see that it contained baggies of illegal drugs. In this case, the
supreme court considers whether that question exceeded the scope of the investigatory
stop. Because the supreme court concludes that the officer’s question did not measurably
extend the stop of the defendant, it holds that the question about the pill bottle did not
exceed the scope of the investigatory stop. Thus, it reverses the district court’s
suppression order.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 16Supreme Court Case No. 19SA226
Interlocutory Appeal from the District Court
El Paso County District Court Case No. 19CR684
Honorable Gregory R. Werner, Judge
________________________________________________________________________
Plaintiff-Appellant:
The People of the State of Colorado,
v.
Defendant-Appellee:
Tony Lee Ashford.
________________________________________________________________________
Order Reversed
en banc
March 2, 2020
________________________________________________________________________
Attorneys for Plaintiff-Appellant:
Daniel H. May, District Attorney, Fourth Judicial District
Andrew Lower, Deputy District Attorney
Doyle Baker, Senior Deputy District Attorney
Colorado Springs, Colorado
Attorney for Defendant-Appellee:
Jennifer Charlier Cox, Deputy Public Defender
Colorado Springs, Colorado
JUSTICE BOATRIGHT delivered the Opinion of the Court.
¶1 While searching Tony Ashford for weapons in the course of an investigatory
stop, a police officer felt a pill bottle in Ashford’s pocket and asked him, “I know
this is a pill bottle, what is it?” Ashford then took the bottle out of his pocket, and
the officer could see that it contained baggies of methamphetamine. Ashford was
arrested, and after a more thorough search, he was charged with several drug-
related offenses, as well as six habitual offender counts.
¶2 Ashford moved to suppress all evidence obtained as a result of the stop. The
district court granted Ashford’s motion, finding that the officer’s question about
the pill bottle exceeded the scope of the stop. The People filed this timely
interlocutory appeal.
¶3 Because we conclude that the officer’s question did not measurably extend
the stop of Ashford, we hold that the question about the pill bottle did not exceed
the scope of the investigatory stop. Thus, we reverse the district court’s
suppression order and remand for further proceedings consistent with this
opinion.
I. Facts and Procedural History
¶4 A man told police officers on patrol that he had just argued with Ashford
and Ashford’s girlfriend, and that he was concerned Ashford was going to “lay
hands” on his girlfriend. He further informed the officers that Ashford regularly
sold methamphetamine.
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¶5 Shortly thereafter, another officer located Ashford and his girlfriend and
asked them to stop so that he could speak with them about the domestic abuse
allegations. Ashford appeared nervous. The officer patted Ashford down for
weapons and felt a pill bottle in Ashford’s jacket pocket. The officer asked
Ashford, “I know this is a pill bottle, what is it?” In response, Ashford removed a
pill bottle from his pocket and showed it to the officer, who could see that it
contained baggies of methamphetamine. The officer then arrested Ashford and
conducted a more thorough search of him, during which he discovered $233 in
small-denomination bills and unused baggies.
¶6 The People charged Ashford with one count each of possession with intent
to manufacture or distribute a controlled substance, possession of a controlled
substance, and possession of drug paraphernalia, as well as six habitual offender
counts.
¶7 Ashford moved to suppress all the evidence obtained as a result of this stop,
and the district court held a hearing. The district court first concluded that the
initial stop of Ashford was supported by reasonable suspicion that Ashford might
be a threat to his girlfriend’s safety; the court further found that the officer had
legitimate safety concerns justifying the pat-down for weapons. However, the
district court then concluded that the officer “exceeded the reasonable scope of the
suspicion that [he] had for the initial contact” when he asked Ashford about the
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pill bottle because the officer knew that the bottle was not a weapon. The district
court then granted Ashford’s motion to suppress, finding that the officer “had no
constitutional basis to ask [Ashford] to empty out his pockets, to ask what the pill
bottle is, or anything like that.” As a result, the court suppressed all of the evidence
seized.
¶8 In response, the People filed this interlocutory appeal.1
II. Standard of Review
¶9 A district court’s ruling on a motion to suppress evidence is a “mixed
question of law and fact.” People v. Allen, 2019 CO 88, ¶ 13, 450 P.3d 724, 728
(quoting People v. Threlkel, 2019 CO 18, ¶ 15, 438 P.3d 722, 727). When reviewing
such an order, we defer to the district court’s factual findings so long as they are
supported by sufficient evidence in the record. Id. But we review the district
court’s conclusions of law de novo. Id.III. Analysis
¶10 We begin by laying out the controlling authority for investigatory stops. We
next apply that law to the facts and conclude that the officer’s question about the
1The People have certified that this appeal was not taken for the purposes of delay
and that the pill bottle and all related evidence are a substantial part of the proof
of all charges against Ashford, as required by section 16-12-102(2), C.R.S. (2019),
and C.A.R. 4.1(a).
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pill bottle did not measurably extend the stop of Ashford, meaning it did not
exceed the scope of the investigatory stop.
A. Law
¶11 Both the U.S. and Colorado Constitutions protect against “unreasonable
searches and seizures.” U.S. Const. amend. IV; Colo. Const. art. II, § 7. Typically,
searches and seizures must be supported by probable cause to be reasonable. U.S.
Const. amend. IV; Colo. Const. art. II, § 7. However, in certain circumstances, a
police officer’s stop of an individual may be reasonable despite the lack of
probable cause. See Terry v. Ohio, 392 U.S. 1, 20–21 (1968). One of those
circumstances is an investigatory stop, where an officer can briefly stop an
individual if the officer is “operating with a reasonable suspicion of criminal
activity.” People v. Ingram, 984 P.2d 597, 603 (Colo. 1999). Within an investigatory
stop, an officer is further permitted to conduct a search for weapons if the search
is “limited to that which is necessary for the discovery of weapons which might be
used to harm the officer or others nearby.” Terry, 392 U.S. at 25–27.
¶12 An investigatory stop complies with the Fourth Amendment if it satisfies
three criteria:
(1) [T]he [investigating] officer [has] “an articulable and specific basis
in fact for suspecting (i.e., a reasonable suspicion) that criminal
activity has taken place, is in progress, or is about to occur”; (2) the
intrusion’s purpose [is] reasonable; and (3) the character and scope of
the intrusion [are] “reasonably related to its purpose.”
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People v. Reyes-Valenzuela, 2017 CO 31, ¶ 11, 392 P.3d 520, 522–23 (quoting People v.
Salazar, 964 P.2d 502, 505 (Colo. 1998)).
¶13 Under the third criterion, “a shift in investigatory purpose is not improper
when the underlying detention remains lawful.” People v. Chavez-Barragan,
2016 CO 66, ¶ 26, 379 P.3d 330, 336 (citing Muehler v. Mena, 544 U.S. 93, 100–01
(2005), and Arizona v. Johnson, 555 U.S. 323, 333 (2009)). Moreover, “off-topic
questioning is permissible as long as it does not ‘measurably extend’ the stop.” Id.,379 P.3d at 337 (quoting Johnson, 555 U.S. at 333). In other words, “the permissible
scope of an investigatory stop is not exceeded by making inquiries that do not
measurably delay” the investigatory stop, so long as those inquiries do not extend
beyond “the time necessary to diligently investigate for [the stop’s] original
purpose.” People v. Ball, 2017 CO 108, ¶¶ 10–11, 407 P.3d 580, 584.
¶14 We applied this law in Ball. In that case, an officer approached a car based
on reasonable suspicion that an argument between the car’s occupants would
escalate to domestic violence. Id. at ¶¶ 4, 7, 407 P.3d at 583. Because the officer
recognized symptoms of drug use, he asked one of the car’s occupants if he could
speak to her; she consented, and when she left the car, the officer asked her
“whether there was anything illegal in the car and . . . when she had last used
methamphetamine.” Id. at ¶ 6, 407 P.3d at 583. At that point, the woman offered
to show the officer the methamphetamine, pipe, and scale that were in the car. Id.
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The district court concluded that the initial stop was permissible because it “was
justified by reasonable suspicion to investigate for domestic violence.” Id. at ¶ 7,
407 P.3d at 583. However, it ruled that the officer “exceeded the parameters of the
investigatory stop” once he realized that no acts of domestic violence were
occurring but nevertheless continued to ask about drugs. Id. We reversed because,
as relevant here, the officer used “minimally intrusive investigative methods” that
“fell well within the range of techniques associated with diligently pursuing a
limited investigatory stop.” Id. at ¶ 14, 407 P.3d at 585. Thus, the officer’s question
about what was in the car and when the defendant had last used
methamphetamine did not measurably extend the stop. See id. at ¶¶ 10–14,
407 P.3d at 584–85.
¶15 With these principles in mind, we now turn to the facts of Ashford’s case.
B. Application
¶16 The district court here effectively concluded that the officer’s stop of
Ashford satisfied the first two requisite criteria for a valid investigatory stop
because (1) the initial stop was supported by reasonable suspicion that Ashford
might be a threat to his girlfriend’s safety;2 and (2) the officer had legitimate safety
2 Ashford asks us to review whether the stop was supported by reasonable
suspicion. However, the scope of our review is limited to the district court’s
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concerns justifying the search for weapons, rendering the initial pat-down
reasonable. Thus, the issue is whether the third criterion—that the character and
scope of the intrusion were reasonably related to the stop’s purpose—was
satisfied. We conclude that it was.
¶17 The facts of this case are comparable to those in Ball. As in that case, the
district court found that the officer here had reasonable suspicion to investigate
Ashford for domestic violence. During his brief search of Ashford for weapons,
the officer felt what he thought was a pill bottle and asked Ashford one short
question about it. This led to Ashford producing the pill bottle without any
request to do so by the officer. While the question was off-topic, we have explicitly
stated that off-topic questioning is permissible so long as it does not measurably
extend the investigatory stop. See Chavez-Barragan, ¶ 26, 379 P.3d at 337. The
officer asked a single question, which took mere seconds. Hence, like in Ball, the
question asked here was minimally intrusive and did not measurably extend the
investigatory stop.
¶18 Thus, we hold that the question about the pill bottle did not exceed the scope
of the investigatory stop.
reasoning supporting the suppression order under C.A.R. 4.1. See Ball, ¶ 12,
407 P.3d at 584 (citing People v. Weston, 869 P.2d 1293, 1297 (Colo. 1994)).
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IV. Conclusion
¶19 For the foregoing reasons, we reverse the district court’s suppression order
and remand for further proceedings consistent with this opinion.
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