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observing a stop and frisk of an intoxicated person prior to protective custody was conducted because “the day was extremely cold” and the person was stopped “on an isolated mountain road”
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No. 86SA98
Decided May 26, 1987.
Interlocutory Appeal from District Court, El Paso County Honorable Richard V. Hall, Judge
Barney Iuppa, District Attorney, Robert B. Harward, Deputy District Attorney, for Plaintiff-Appellant.
Dennis W. Hartley, P.C., Dennis W. Hartley, for Defendant-Appellee.
In this interlocutory appeal, the People, pursuant to C.A.R. 4.1, challenge an order of the El Paso County District Court suppressing certain evidence removed by law enforcement officers from the pocket of a coat worn by the defendant, Donald Joseph Dandrea, prior to transporting the defendant to an alcohol detoxification facility. The trial court concluded that the search was not authorized by the provisions of the Colorado Alcoholism and Intoxication Treatment Act, §§ 25-1-301 to -316, 11 C.R.S.(1982 1986 Supp.) (the Act), and violated the defendant's constitutional rights. The People contend that the search was proper. We affirm the trial court's order.
I
At approximately 7:30 a.m. on November 1, 1985, Broadmoor Police Officer Marion Shipley pursued and stopped a pickup truck driven in an erratic manner by Remy Espinoza. The defendant was the sole passenger in the truck. In response to a radio call by Officer Shipley for backup assistance, Officer John Woodward of the Colorado Springs Police Department arrived on the scene. Woodward removed Espinoza from the driver's seat of the pickup truck, arrested him for driving with a suspended driver's license, searched him, and placed him in a police patrol car. Officer Woodward and El Paso County Deputy Sheriff Victor Labrecque, who had also responded to Officer Shipley's request for assistance, then removed the defendant from the pickup.
The defendant concedes that Officer Shipley had probable cause to arrest Espinoza.
A cliff descending over 100 feet bordered the roadside. As the defendant got out of the vehicle, he slipped and grabbed the door of the truck. The officers escorted him to the middle of the road. Concluding that he was intoxicated, they discussed what to do with him.
Because the day was extremely cold and the traffic stop had occurred on an isolated mountain road, the officers decided that the defendant's personal safety might be jeopardized if he were left at the scene. They then decided to take the defendant into civil protective custody and transport him to an alcohol detoxification facility pursuant to provisions of the Act. Woodward and Labrecque, accompanied by Shipley, took the defendant to Shipley's police car. Pursuant to departmental policies, Labrecque conducted a pat-down search of the defendant for weapons before placing him in the vehicle. When the thickness of the defendant's jacket made it impossible to ascertain the nature of items in the pockets of the jacket, Labrecque began removing the contents of the pockets and placing them on the trunk of the car. Woodward observed the items, one of which was a small packet of heavy folded paper approximately the size of a razor blade. Concluding that the paper did contain a razor blade, Woodward opened it. He discovered a white, powdery substance, later identified as cocaine. The defendant was taken to the El Paso County Jail and later charged in a one-count information with possession of a schedule II controlled substance in violation of section 12-22-310, 5 C.R.S. (1985), and section 18-18-105, 8B C.R.S. (1986).
The police officers testified that they believed the defendant was intoxicated, and such intoxication was demonstrated by the defendant's glassy eyes, his slowed body movements, and by the fact that the defendant stumbled as he exited the vehicle to speak with the officers. The defendant asserted that although he was "drunk" he was not intoxicated or incapacitated to the point of being a danger to the health or safety of himself or others and further asserted that fatigue might easily have been a major contributor to the symptomatology. The officers stated that they did not conduct their search of the defendant because of any perceived threat to themselves.
At the first suppression hearing, Officer Shipley testified that Broadmoor Police Department policy requires an officer to search for weapons before transporting a person in a police vehicle. Officer Woodward's testimony at that hearing also suggested that a person must be searched for weapons prior to being transported to a detoxification facility, but did not indicate the source of such requirement. Deputy Labrecque testified El Paso County Sheriff's Department policy dictates that any person who is to be transported in a patrol car must first be searched for weapons and handcuffed, but that a pat-down search might suffice at times. No actual police department manuals or directives were introduced into evidence.
The defendant was bound over for trial after a preliminary hearing. He then filed a motion to suppress the cocaine, asserting that it had been obtained in violation of both article II, section 7, of the Colorado Constitution and the fourth amendment to the United States Constitution. At the first of two suppression hearings Officers Shipley and Woodward and Deputy Labrecque testified that the search of the defendant was initiated only as a result of the decision to take the defendant into civil protective custody and was limited to a desire to discover any weapons the defendant may have possessed. At the second hearing the acting coordinator of the Pikes Peak Mental Health Center alcohol receiving center testified that persons arriving at the center are initially given a breathalyzer test; that if the test indicates an alcohol level greater than 0.04, the individual is admitted to the center and given pajamas to wear; and that the individual's clothing and personal possessions are then thoroughly searched in the presence of the police officer, inventoried and secured in a locked container. The supervisor also testified that such search could include opening a paper packet such as the one found in the defendant's possession and turning over any discovered contraband to the police.
This measurement presumably represents the number of grams of alcohol per two hundred ten liters of breath.
The trial court ruled that the police officers had probable cause to take the defendant into civil protective custody for transportation home or to a detoxification facility in accordance with section 25-1-310(1) of the Act; that the statute only empowers police officers to conduct a pat-down search of the person taken into civil protective custody; and that the search of the packet found in the defendant's possession violated constitutional provisions prohibiting unreasonable searches. The trial court further held that the packet should have been quarantined without any further search of its contents and returned to the defendant upon his release from the detoxification facility; that detoxification center personnel lacked authority to conduct any additional search of items such as the one here found in the defendant's possession; and that it would be improper to conclude that the evidence of contraband would have been inevitably discovered had the police officers not conducted an impermissible search prior to transporting the defendant.
II
The People argue that the Act should be construed to authorize police officers to conduct as complete a search of the person and property of an individual taken into civil protective custody pursuant to section 25-1-310(1) as would be permitted if the individual were placed under arrest based on probable cause that the person had committed a criminal act. We conclude that the policy and provisions of the Act require rejection of this argument as a general proposition. We further conclude that in the particular circumstances of this case the trial court did not err in concluding that the decision to open the paper packet was unreasonable.
The People argue that the trial court erred in concluding that the detoxification center personnel lacked the authority to conduct a thorough search of the defendant's personal effects. The acting director of the alcohol receiving center serving the Colorado Springs area testified that a person delivered to the facility is asked to remain at the center and to consent to a search of his or her personal effects; that if the detainee agrees, a thorough search is made of the person's personal effects for contraband as well as for weapons; and that in practice center personnel would open containers and folded pieces of paper, plastic or tinfoil large enough to contain a razor blade or a small quantity of powder but would not open tinfoil appearing to contain gum or examine the contents of cigarette packages. The administrator also stated that if a person agreed to remain at the center but objected to any search, center personnel would permit the police officer to conduct a thorough search of the detainee's personal effects. The administrator further testified, however, that a person who objected to remaining at the center would not be searched, but instead would be released to the custody of the officer who had delivered the person to the facility for transport to a jail or to the person's home. No evidence was introduced indicating whether in this case the defendant would have been taken to jail or driven home in the event the defendant refused to remain at the center. Assuming, without deciding, that the theory of inevitable discovery advanced by the People is applicable to the question of the permissible extent of an initial field search of a person placed in civil protective custody because of intoxication, this evidence is insufficient to support said theory. We, therefore, need not determine the question of the permissible scope of searches of detainees conducted at detoxification centers. See Illinois v. Lafayette, 462 U.S. 640 (1983) (the Court noting, in reviewing the propriety of a full inventory search of a criminal arrestee, that it was unclear whether the defendant was to have been incarcerated, making that an appropriate inquiry on remand); Walden v. State, 397 So.2d 368 (Fla.Dist.Ct.App. 1981) (police officer's pat-down search of defendant was not authorized where defendant did not consent to being placed in detoxification center and was not incapacitated); Bennett v. State, 344 So.2d 315 (Fla.Dist.Ct.App. 1977) (same result); see generally 2 W. LaFave, Search Seizure § 5.5(c) (2d ed. 1987) (full inventory search of criminal arrestee is unlawful if detention is unjustified either because prior probable cause for arrest has dissipated or because arrestee was not afforded right to obtain stationhouse release).
When statutory language is unambiguous, the intent of the General Assembly is to be gleaned from that language, taking into consideration the entire statute. People v. District Court, 713 P.2d 918 (Colo. 1986); Heagney v. Schneider, 677 P.2d 446 (Colo.App. 1984). Section 25-1-310(1) states in pertinent part as follows:
"Emergency commitment. (1) When any person is intoxicated or incapacitated by alcohol and clearly dangerous to the health and safety of himself or others, such person shall be taken into protective custody by law enforcement authorities or an emergency service patrol, acting with probable cause, and placed in an approved treatment facility. If no such facilities are available, he may be detained in an emergency medical facility or jail, but only for so long as may be necessary to prevent injury to himself or others or to prevent a breach of the peace. A law enforcement officer or emergency service patrolman, in detaining the person, is taking him into protective custody. In so doing, the detaining officer may protect himself by reasonable methods but shall make every reasonable effort to protect the detainee's health and safety. A taking into protective custody under this section is not an arrest, and no entry or other record shall be made to indicate that the person has been arrested or charged with a crime. . . . Nothing in this subsection (1) shall preclude an intoxicated or incapacitated person who is not dangerous to the health and safety of himself or others from being assisted to his home or like location by the law enforcement officer or emergency service patrolman."
This language indisputably articulates a clear legislative determination that the act of taking a person into civil protective custody is not an arrest.
The statute authorizes officers to assist to their homes persons intoxicated or incapacitated by alcohol but not clearly dangerous to the health and safety of themselves or others. The defendant has not challenged the authority of the officers to place him in civil protective custody, however.
The conclusion that police officials encountering intoxicated persons must make a distinction between criminal custodial arrests and civil protective detentions is reinforced by other provisions of the Act. Section 25-1-301 sets forth the purpose of the Act as follows:
"(1) It is the policy of this state that alcoholics and intoxicated persons may not be subjected to criminal prosecution because of their consumption of alcoholic beverages but rather should be afforded a continuum of treatment in order that they may lead normal lives as productive members of society. . . .
"(2) With the passage of this part 3 at its first regular session in 1973, the forty-ninth general assembly has recognized the character and pervasiveness of alcohol abuse and alcoholism and that public intoxication and alcoholism are health problems which should be handled by public health rather than criminal procedures. . . ."
Section 25-1-316 states in part as follows:
"Criminal laws — limitations. (1) No county, municipality, or other political subdivision may adopt or enforce a local law, ordinance, resolution, or rule having the force of law that includes drinking, being a common drunkard, or being found in an intoxicated condition as one of the elements of the offense giving rise to a criminal or civil penalty or sanction.
. . . .
"(3) Nothing in this part 3 affects any law, ordinance, resolution, or rule against drunken driving, driving under the influence of alcohol, or other similar offense involving the operation of a vehicle, an aircraft, or a boat or machinery or other equipment or regarding the sale, purchase, dispensing, possessing, or use of alcoholic beverages at stated times and places or by a particular class of persons.
"(4) The fact that a person is intoxicated or incapacitated by alcohol shall not prevent his being arrested or prosecuted for the commission of any criminal act or conduct not enumerated in subsection (1) of this section.
"(5) Nothing in this part 3 shall be construed as a limitation upon the right of a police officer to make an otherwise legal arrest, notwithstanding the fact that the arrested person may be intoxicated or incapacitated by alcohol."
Considered together, these provisions indicate a clear legislative decision that persons taken into civil protective custody solely because of intoxication are to be treated quite differently from persons placed under custodial arrest because of suspected criminal conduct.
An arrest of a person upon probable cause of having committed a crime for the purpose of taking the person to police facilities for booking is considered a "custodial arrest." United States v. Robinson, 414 U.S. 218 (1973); Terry v. Ohio, 392 U.S. 1 (1968).
This legislative policy is in harmony with the policy underlying the Uniform Alcoholism and Intoxication Treatment Act, 9 U.L.A. 57 (1979), which served as the model for the Act. As emphasized by a Commissioner's note to the Uniform Act, the protective custody authorized thereunder "is similar to the way in which the police provide emergency assistance to other ill people, such as those in accidents or those who have sudden heart attacks. It is a civil procedure. . . ." 9 U.L.A. at 82. See ABA Standards for Criminal Justice § 1-2.2 (2d ed. 1986). The detention authorized by the Act is permitted only to prevent harm to the detainee or others resulting from the detainee's conduct or inability to act. See Carberry v. Adams County Task Force On Alcoholism, 672 P.2d 206 (Colo. 1983). The Act, therefore, cannot be used directly or indirectly to justify the equivalent of a criminal custodial arrest not supported by probable cause. See, e.g., Peter v. State, 531 P.2d 1263 (Alaska 1975); State v. Perry, 298 Or. 21, 688 P.2d 827 (1984); State v. Harlow, 123 N.H. 547, 465 A.2d 1210 (1983).
The Act does not require the procurement of a warrant prior to placing a person in civil protective custody. Keeping this fact in mind, and also recognizing the legislative policy the Act is designed to accomplish, we must make every effort to construe the statute in a manner that does not violate constitutional limits. § 2-4-201, 1B C.R.S. (1980); People v. Loomis, 698 P.2d 1320 (Colo. 1985); Yarbro v. Hilton Hotels Corp., 655 P.2d 822 (Colo. 1982); cf. Torres v. Puerto Rico, 442 U.S. 465 (1979) (police officers' warrantless search of defendant's baggage, though authorized by statute, violates fourth amendment where probable cause and exigent circumstances absent). A warrantless search is presumptively invalid under the fourth amendment to the United States Constitution and article II, section 7, of the Colorado Constitution, subject only to a few narrow and specifically delineated exceptions. Thompson v. Louisiana, 469 U.S. 17 (1984) (per curiam); United States v. United States Dist. Court, 407 U.S. 297 (1972); People v. Reynolds, 672 P.2d 529 (Colo. 1983); People v. Harding, 620 P.2d 245 (Colo. 1980). The general requirement that a search proceed only upon prior approval by a judge or magistrate interposes a neutral and detached judicial officer between the police and the "persons, houses, papers, and effects" of the citizen, thus ensuring the protection of those areas of a person's life to which reasonable expectations of privacy attach. Thompson v. Louisiana, 469 U.S. 17; United States v. Place, 462 U.S. 696 (1983); Steagald v. United States, 451 U.S. 204 (1981); Katz v. United States, 389 U.S. 347 (1967). The constitutional test of a warrantless search ultimately is reduced to the question of whether the search was reasonable under all relevant attendant circumstances. United States v. Jacobsen, 466 U.S. 109 (1984); Rakas v. Illinois, 439 U.S. 128 (1978); People v. Unruh, 713 P.2d 370 (Colo.), cert. denied, 106 S.Ct. 2894 (1986); People v. Savage, 630 P.2d 1070 (Colo. 1981). The prosecution bears the burden of establishing that some basis exists to justify departure from the fundamental principle of federal and Colorado constitutional law that a warrantless search is presumed to violate the reasonable expectation of freedom from intrusion into the privacy of one's person and personal effects enjoyed by all private parties. Arkansas v. Sanders, 442 U.S. 753 (1979); Mincey v. Arizona, 437 U.S. 385 (1978); United States v. Chadwick, 433 U.S. 1 (1977); Katz v. United States, 389 U.S. 347; People v. Brewer, 690 P.2d 860 (Colo. 1984); People v. Williams, 200 Colo. 187, 613 P.2d 879 (1980).
The fourth amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV.
Article II, section 7, of the Colorado Constitution provides: "Security of person and property — searches — seizures — warrants. The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures; and no warrant to search any place or seize any person or things shall issue without describing the place to be searched, or the person or thing to be seized, as near as may be, nor without probable cause, supported by oath or affirmation reduced to writing." Colo. Const. art. II, § 7.
Any determination of what constitutes reasonable warrantless police conduct in civil protective custody detentions authorized by the Act must take into account the absence of certain factors deemed most significant in determining the permissible scope of warrantless searches of suspected criminals. The primary justifications for permitting warrantless searches or seizures incident to custodial arrests are preserving and avoiding destruction of evidence of the crime for which the defendant has been arrested and protecting the safety of arresting officers. Chimel v. California, 395 U.S. 752 (1969). Another exception to the warrant requirement is recognized for items discovered in plain view in the course of an otherwise permissible search; however, only where there is probable cause to believe those items are associated with criminal conduct is a further search of the items permissible. Arizona v. Hicks, 107 S. Ct. 1149 (1987). In these few and narrowly defined circumstances, the governmental interests are deemed sufficiently important to permit warrantless searches and seizures so long as the invasions of personal privacy rights are limited to the furtherance of those interests. See generally 2 W. LaFave, Search Seizure § 5.2(d) (2d ed. 1987).
The United States Supreme Court has noted that justification for a particular seizure does not necessarily constitute justification for a search of the item seized. Walter v. United States, 447 U.S. 649 (1980).
In civil protective custody cases such as this one, no governmental interest in locating or preserving evidence of a suspected crime is present. However, the Act does contemplate the transportation of some persons to various locations. Therefore, one factor to be considered in balancing a detainee's privacy interest against legitimate governmental needs to interfere with that interest is the safety of the officer as well as the detainee during such transportation. See, e.g., State v. Smith, 112 Ariz. 531, 544 P.2d 213 (1975) (pat-down search of intoxicated individual not under arrest is reasonable to protect safety of police officer while transporting individual); Commonwealth v. Rehmeyer, 349 Pa. Super. 176, 502 A.2d 1332 (1985) (pat-down search of intoxicated individual not under arrest is reasonable to protect safety of police officer while transporting individual to his home). While the goal of assuring officer safety is admittedly important, the legislative emphasis on the noncriminal nature of the contact between government officials and private citizens in civil protective custody settings requires that in such settings the individual's privacy interest must be accorded maximum weight in determining the reasonableness of police conduct. State v. Newman, 292 Or. 216, 637 P.2d 143 (1981), cert. denied, Oregon v. Newman, 457 U.S. 1111 (1982); State v. Perry, 298 Or. 21, 688 P.2d 827 (1984). These features of civil protective custody cases distinguish them from cases involving searches incident to custodial arrests.
The Act provides that in some circumstances an individual may be placed in police custody for suspected criminal conduct as well as for the beneficent purposes of the Act. § 25-1-316(4). In this case, the defendant was placed in custody only because of his intoxicated condition.
Distinguishable from cases involving searches of civil detainees are cases suggesting that extensive searches of personal effects may be constitutionally reasonable even in the absence of an interest in preserving evidence. See New York v. Belton, 453 U.S. 454 (1981); United States v. Robinson, 414 U.S. 218 (1973); Gustafson v. Florida, 414 U.S. 260 (1973); People v. Bischofberger, 724 P.2d 660 (Colo. 1986). A criminal arrestee's privacy interest is immediately reduced. In a civil protective custody case, the detainee's privacy interest remains significant. Similarly, when initial police interference with a private party's conduct is based on reasonable suspicion rather than on probable cause, the extent of the initial search is relatively limited, in part recognizing that such person retains some reasonable expectation of privacy. E.g., Mincey v. Arizona, 437 U.S. 385 (1978); United States v. Chadwick, 433 U.S. 1 (1977); United States v. Brignoni-Ponce, 422 U.S. 873 (1975); Terry v. Ohio, 392 U.S. 1 (1968); People v. Bischofberger, 724 P.2d 660 (Colo. 1986).
Because the degree of potential danger to an officer will differ in different factual contexts, a case-by-case analysis rather than adoption of any rigid formula is required to determine the permissible extent of particular searches in initial civil protective custody detentions. State v. Harlow, 123 N.H. 547, 465 A.2d 1210. However, it must be noted that even in cases involving searches incident to investigative stops, wherein the reasonable personal privacy interest of the suspect is less significant, an initial pat-down search for weapons is deemed sufficient to achieve the goal of protecting officer safety. E.g. Delaware v. Prouse, 440 U.S. 648 (1979); Mincey v. Arizona, 437 U.S. 385; United States v. Brignoni-Ponce, 422 U.S. 873 (1975); Terry v. Ohio, 392 U.S. 1 (1968). It would appear, therefore, that in most cases involving detention of a private citizen for the sole purpose of placing that person in civil protective custody, a pat-down search for weapons at the scene would fully satisfy the need to assure officer safety and the safety of the individual while simultaneously according sufficient weight to the detainee's status as a noncriminal and attendant interest in personal privacy. Thus the discovery of an item believed to be or to contain a weapon would in most circumstances require nothing more than the isolation of that item at the scene of the detention. Once the detainee's access to the item is denied, any further search of the item would have to be justified on some other basis.
A warrantless search, particularly one stemming from noncriminal conduct, see Welsh v. Wisconsin, 466 U.S. 740 (1984), is strictly limited in scope by the circumstances justifying the search, Thompson v. Louisiana, 469 U.S. 17 (1984) (per curiam); Mincey v. Arizona, 437 U.S. 385 (1978); People v. Unruh, 713 P.2d 370 (Colo.), cert. denied, 106 S.Ct. 2894 (1986); People v. Reynolds, 672 P.2d 529 (Colo. 1983); People v. Clements, 661 P.2d 267 (Colo. 1983); People v. Roark, 643 P.2d 756 (Colo. 1982); see also United States v. Presler, 610 F.2d 1206 (4th Cir. 1979) (police entry into apartment to render aid was reasonable, but thorough search of apartment after individual was transported to hospital exceeded scope of exigency where individual was not suspected of criminal conduct); Shepherd v. State, 343 So.2d 1349 (Fla.Dist.Ct.App.) (warrantless police search of person's wallet after person was brought to hospital with bullet wounds was unreasonable), cert. denied, 352 So.2d 175 (Fla. 1977); State v. Richards, 296 A.2d 129 (Me. 1972) (after person taken to hospital following automobile accident, police officer's warrantless search of packet found in person's jacket pocket was unreasonable); cf. United States v. Nord, 586 F.2d 1288 (8th Cir. 1978) (items found in plain view by police officers summoned to apartment to assist intoxicated individual are admissible).
Application of these principles to the facts of this case leads us to conclude that the trial court did not abuse its discretion in granting the defendant's motion to suppress. Deputy Labrecque's initial pat-down search of the defendant for weapons to make certain that the defendant would not harm himself or others while being transported from the scene was reasonable in view of the purposes of the Act and the attendant circumstances. Although no officer was in fear of danger to himself when Deputy Labrecque could not identify the objects located in the defendant's clothing, his decision to remove the objects contained in the coat pockets may be deemed a permissible extension of the initial pat-down search, as the trial court concluded. See State v. Donovan, 128 N.H. 702, 519 A.2d 252 (1986) (removal of items from detainee's pockets is consistent with policies of statute dealing with civil protective custody of intoxicated individuals, because pockets may have contained a small, dangerous object). However, once the package was confiscated and identified as a probable weapon, the limited objectives of the warrantless search had been fully accomplished. The People offered no justification for any additional intrusion into the defendant's privacy interest to support the warrantless search of the seized package. In these circumstances, the record fully supports the trial court's order suppressing the contents of the package.
The People suggest that the existence of police department policies concerning searches of criminal arrestees prior to placing them in patrol cars is a factor to be considered in defining the extent of a reasonable search of a person at the time the person is initially placed in civil protective custody. See Colorado v. Bertine, 107 S.Ct. 738 (1987); Illinois v. Lafayette, 462 U.S. 640 (1983); South Dakota v. Opperman, 428 U.S. 364 (1976). Whatever weight might be accorded such policy, if uniformly applied, no such policy was established in this case. See supra note 3.
For the foregoing reasons, the order of the trial court is affirmed.
Justice Vollack dissents and Justice Rovira joins in the dissent.