April 25, 2011

Colorado Supreme Court criminal law decisions 4-18-11

People v. Walters                        Consensual Encounter
Facts: The Brighton Police got a call from a snitch who claimed to have just purchased meth from Mr. Walters. The snitch offered to make a phone call to Mr. Walters, the police obliged, and the snitch arranged a deal for the K-Mart parking lot in Brighton. A Brighton cop, Officer Portillo, shows up at the parking lot, sees Mr. Walters at his car with the hood open. Prior to contacting Mr. Walters, some Brighton Sergeant told Officer Portillo that Mr. Walters most likely had drugs in his car. Upon contacting Mr. Walters, Officer Portillo, according to the opinion, asked Mr. Walters if he needed assistance and then asked to do a pat down on Mr. Walters and search his car. The opinion goes to lengths to explain the non-threatening language and tone the officer used. Mr. Walters allegedly consented to the pat down and search of his car by saying, “Go ahead I do not want to get into any trouble.”  Unfortunately, the cop claimed to find a baggie of meth during the search of the car. The trial court found the whole encounter a pretext to stop, arrest and search, and thus, suppressed all the evidence.
Issue: Whether the officer with ulterior motives nevertheless conducted a consensual encounter?
Held: Yes.
Reasoning: The Court ignored anything that might lead it to consider this to be a stop, and stated:
When Officer Portillo contacted the defendant in the Kmart parking lot, he did not activate his patrol car's lights or sirens. Officer Portillo approached the defendant in a nonthreatening manner by asking him if he was having car trouble and needed assistance. Throughout the encounter, Officer Portillo used a conversational tone of voice, stood five to ten feet away from the defendant, and did not display or gesture toward his weapon. Officer Portillo did not take the defendant's identification card. Although a second officer arrived during the encounter, that officer stood off to the side and did not intervene in the encounter. Furthermore, Officer Portillo asked, but did not order, the defendant to submit to a pat down and to the search of his vehicle. Officer Portillo never made a display of force or authority that would indicate that the obligation to comply was greater than the obligation an innocent citizen would normally feel to cooperate with the police.

The Colorado Supreme Court (along with many other courts) misstates when an officer’s subjective motivations may be irrelevant. The Court stated flatly that the subjective intentions of the officers is irrelevant to a Fourth Amendment analysis, and the Court cites Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996). However the exact quote from that Scalia authored opinion only relates to probable cause – not the Fourth Amendment as a whole. Justice Scalia wrote for the majority, “We think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.  Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.Id. Thus, the U.S. Supreme Court held that if an officer has probable cause, the officer’s subjective intentions to stop or arrest are irrelevant. Here, that was precisely the problem the Colorado Supreme Court ignored – the cops had but a snitch witness, and neither probable cause nor reasonable suspicion. Plus, clearly by just the statement the officers admit Mr. Walters made “I do not want to get into any trouble” clearly showed Mr. Walters did not voluntarily, knowingly or intelligently consent to a pat down or search of his car. Nevertheless, the Colorado Supreme Court reversed the trial court’s suppression order.

People v. Brant                         Plain Feel Doctrine
Facts: Cops stopped the jeep in which Ms. Brant rode for a broken taillight. The driver came back under revocation. As the cops walk back to the jeep, they claimed Ms. Brant made some furtive gestures and put something under the seat. Of course, the police claim their safety may have been at risk due to Ms. Brant’s actions and both the trial court and Colorado Supreme Court bought this reason. The police then told Ms. Brant to get out of the car when they patted her down. After the pat-down, the police searched of the passenger compartment where Ms. Brant sat. The police looked under the seat, and found a glove. Upon finding the glove, the cop started feeling the glove. The cop claimed to have felt something he suspected to be drug paraphernalia – a pipe. Based upon what the cop felt, he then emptied the contents of the glove – lo-and-behold, a pipe and a baggie fall out. The trial court thought the whole search of the glove to be what it was – B.S. – and suppressed the evidence gained from the search of the glove.
Issue: Whether an officer may continue to search based upon plain feel when he does not suspect a weapon but evidence of a crime – in this case a pipe?
Held: Yes.
Reasoning: Magical words – “Officer Safety” – once a cop utters these apparently sacred words, any constitutional infringement will always be forgiven. Here, officer safety prompted the seizure of Ms. Brant because she shoved something under the car seat. Officer safety then justified a pat-down search of Ms. Brant. Officer safety also justified a search of the passenger compartment of the jeep. Lastly, in a place where no deadly weapon could or would be – officer safety justified a “pat-down” search of a cloth glove. Thus, under the plain feel doctrine the officer could search the contents of the glove because he had a reasonable suspicion that the gloved contained drug paraphernalia.


  1. Perhaps the officer thought she was hiding a baggie containing a biological weapon in the glove?

    Yes....I cracked the case.

  2. Stephanie StoutMay 2, 2011 at 9:17 AM

    Sarah -- This was my case at the trial court level. The officers at the hearing NEVER testified that they felt they were any safety issues at all nor did they testify they ever saw Ms. Brant holding anything. The SC in this case created new facts regarding the officer safety issue to support overturning the decision.


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