The People of the State of Colorado, Plaintiff-Appellee, v. Stephen Corbin Roth, Defendant-Appellant.
Court of Appeals No. 02CA0160
COURT OF APPEALS OF COLORADO, DIVISION FIVE
2003 Colo. App. LEXIS 1319
August 14, 2003, Decided
NOTICE: [*1] THIS OPINION IS NOT THE FINAL VERSION AND SUBJECT TO REVISION UPON FINAL PUBLICATION
PRIOR HISTORY: Dolores County District Court. No. 00CR11. Honorable Sharon L. Hansen, Judge.
DISPOSITION: JUDGMENT AFFIRMED.
COUNSEL: Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Robert J. Mulhern, Telluride, Colorado; Robert Unruh, Telluride, Colorado, for Defendant-Appellant.
JUDGES: Opinion by JUDGE ROTHENBERG. Vogt and Carparelli, JJ., concur.
OPINIONBY: ROTHENBERG
OPINION: Defendant, Stephen Corbin Roth, appeals the judgment of conviction entered upon a jury verdict finding him guilty of unlawful possession of drug paraphernalia. He challenges the trial court’s pretrial ruling denying his motion to suppress evidence obtained as the result of an allegedly unlawful search of his car. We affirm.
After a hearing on defendant’s motion to suppress, the trial court found the following. Police officers, acting with the intent to interdict persons transporting drugs to a music festival, posted large signs on a road stating “Narcotics Checkpoint, One Mile Ahead” and “Narcotics Canine Ahead.” The signs were part of an elaborate ruse because there was no checkpoint [*2] or other impediment to the free flow of traffic. The purpose of the signs was to allow police officers, dressed in camouflage clothing and hidden on a nearby hill, to monitor the reactions of persons traveling past the signs.
One of the officers watching the section of road near the signs (the first officer) testified that he saw a passenger in defendant’s car toss a small item out of the window onto the side of the road. The officer radioed another police officer farther down the road, provided him with a description of defendant’s car, and described the littering violation committed by the passenger.
A police officer stationed farther down the road (the second officer) flagged defendant down and directed him to pull into a campground area. The second officer informed defendant that he had been stopped because his passenger had been seen throwing an object from the car. Defendant told the officer the passenger had discarded a beverage can. The officer asked defendant for his license and registration which defendant provided.
Approximately one minute later, the first officer radioed the second officer and informed him he had retrieved the item the passenger had thrown from defendant’s [*3] car, and it was a pipe containing residue suspected to be marijuana.
The second officer asked for permission to search defendant’s car, but defendant refused. Nevertheless, the officer searched the car and discovered a marijuana pipe and some psilocybin mushrooms. When defendant asked the officer to retrieve an item from his backpack, the officer searched the backpack and discovered another marijuana pipe.
The trial court found that the police officers who testified were credible and denied defendant’s motion. At trial, defendant was acquitted of the unlawful possession of mushrooms.
I.
Defendant first contends the fictitious checkpoint violated the protections against unreasonable searches and seizures of the federal and state constitutions. We disagree.
A.
Adrug checkpoint in which vehicles are stopped without reasonable suspicion that the occupants have engaged in criminal activity constitutes illegal police conduct in violation of the Fourth Amendment. Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000).
However, the use of fictitious or ruse checkpoints has presented a slightly different issue. United States v. Flynn, 309 F.3d 736 (10th Cir. 2002), [*4] involved facts very similar to those presented here, and we agree with its reasoning.
There, the court addressed the constitutionality of such a fictitious drug checkpoint. The defendant was driving on an interstate highway when he passed signs reading ” Drug Checkpoint 1/3 mile ahead” and “Drug Dogs in Use.” The signs were part of a ruse orchestrated by police because there was no real checkpoint.
The defendant exited the highway and police officers watched as a passenger in the car opened the door and dropped a sack from the car. The officers retrieved the sack, determined that it contained narcotics, and radioed the information to other officers who stopped defendant’s car and arrested him.
The court upheld the trial court’s ruling denying the defendant’s motion to suppress and concluded the fictitious drug checkpoint did not constitute an impermissible drug checkpoint. The court further concluded it was not unconstitutional for the police officers to have created a ruse which caused the defendant to abandon an item of property, the discovery of which provided reasonable suspicion to stop the defendant’s vehicle. United States v. Flynn, supra, 309 F.3d at 739. [*5] See People v. Santistevan, 715 P.2d 792 (Colo. 1986)(misrepresentation by police about the purpose of a search may weigh against a finding of consent but does not invalidate consent); People v. Zamora, 940 939, 942 (Colo. App. 1996)(“Although deception by the police is not condoned by the courts, the limited use of ruses is supported by the overwhelming weight of authority.”).
The Flynn court reasoned that the stop there was based on the individualized suspicion of illegal activity, and therefore was distinguishable from that in Indianapolis v. Edmond, supra.
Defendant relies on Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110, 110 L. Ed. 2d 412 L. Ed. 2d (1990); and United States v. Martinez-Fuerte, 428 U.S. 543, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976). In both cases, the Supreme Court upheld the use of police roadblocks or checkpoints to examine motorists for their sobriety and immigration status, respectively, but the Court analyzed the constitutionality of the checkpoints using a balancing test articulated in Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979). [*6]
Defendant maintains that the balancing test used in Martinez-Fuerte, Brown, and Sitz should have been used by the trial court in this case, and that if the court had done so, it would have been required to grant his motion to suppress. We disagree the balancing test applies where, as here, the stop by the police was not random, but was based on an individualized suspicion of criminal activity.
Brown v. Texas, supra, was not a checkpoint case. There, the defendant was convicted of violating a Texas statute making it a crime for a person to refuse to identify himself or herself to a peace officer who made a lawful stop and requested such information. The United States Supreme Court held the detention of the defendant was unreasonable because the police lacked a reasonable suspicion that he was involved in any criminal activity.
Citing Martinez-Fuerte, the Court in Brown v. Texas, supra, explained the need for a balancing test where the defendant is challenging the reasonableness of a seizure that is less intrusive than a traditional arrest. The Court stated that “consideration of the constitutionality of such seizures [should [*7] involve] a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Brown v. Texas, supra, 443 U.S. at 50, 99 S. Ct. at 2641, 61 L. Ed. 2d at 361 (cites omitted).
In contrast to Brown v. Texas, supra, where the police had no evidence of any criminal activity, the police here observed defendant’s passenger commit the offense of littering. This offense, while minor, justified the police in stopping defendant’s car. See