Ct. App. September 2, 2010

No. 08CA2071. People v. Smith.Motion to Suppress—Investigatory Stop—Statements—Voluntary—Presentence Confinement Credit—County Jail—Discretion.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of first-degree criminal trespass. He also appealed the trial court’s order regarding presentence confinement credit. The judgment of conviction was affirmed, the trial court’s denial of a portion of defendant’s presentence confinement credit (PSCC) was reversed, and the case was remanded with directions.

Defendant unlocked the victim’s front door by reaching through an open window, and then confronted the victim about money the victim owed defendant. A physical confrontation ensued outside the victim’s home. The police arrived, secured the scene, and arrested defendant.

On appeal, defendant contended that the trial court erred in denying his motion to suppress because his initial encounter with police was an arrest and he was not read his Miranda rights. The officer conducted an investigatory stop by securing the scene, ordering the defendant and victim to the ground, and drawing his weapon.  The officer was found to have conducted an investigatory stop only, despite the drawing of his weapon, and later placing the defendant in his patrol car.  The officer was warned about, and found, a shotgun and shells near defendant.  The police officer’s use of force did not exceed the force necessary as a reasonable precaution during the investigatory stop. Further, after the scene was secured, the officer informed defendant that he was not under arrest. Defendant then agreed to sit in the officer’s patrol car to get out of the cold, at which point he relayed to the police his version of events. Because defendant’s statements were voluntary, the trial court did not err in denying his motion to suppress statements made in the patrol car.

The court stated,

Our supreme court has noted that the trend developing since Terry has been to include within the rubric of investigatory stops the use of handcuffs, the placing of suspects in police cruisers, the drawing of weapons, and other measures of force more traditionally associated with arrest than with investigatory detention when such measures are needed to protect the safety of the law enforcement officer and those around him or her. People v. Archuleta, 980 P.2d 509, 513 (Colo. 1999) (the use of handcuffs does not automatically transform a detention into an arrest, nor is it unreasonable for an officer to draw a gun to confront a suspect when the gun provides "a justifiable measure of precaution ensuring [the officer’s] protection in the course of conducting an investigatory stop."); see King, 16 P.3d at 816; Smith, 13 P.3d at 305.

Initially, we note that the record supports the trial court’s conclusion that the police possessed reasonable suspicion to conduct an investigatory stop of defendant and Ramos in the first instance. See King, 16 P.3d at 816. Further, we conclude that the record supports the trial court’s conclusion that Van Meter’s use of force did not exceed the force necessary as a reasonable precaution during the investigatory stop. When Van Meter arrived at the grassy area, he faced a difficult and dangerous challenge in securing the scene. The scene was dark, and Van Meter was not able to tell if others, besides Ramos and defendant, were present. The situation worsened when Van Meter saw defendant toss aside the guitar case and defendant told Van Meter that there was an unsecured shotgun at the scene.

Defendant also contended that the trial court erred by failing to give him PSCC for the full eighty-nine days he spent in jail before the court sentenced him to ninety days in jail as a condition of his sentence to probation. The PSCC statute requires a trial court to award PSCC if a defendant’s sentence is to be served in a state correctional facility. Here, defendant was to be sentenced to a county jail, so the trial court was permitted but not required to award PSCC. However, because the trial court chose to exercise its discretion to give defendant credit for his presentence confinement, the court was required to ensure that defendant received full credit for his presentence confinement. Therefore, the trial court abused its discretion in awarding defendant only sixty days of PSCC. The court’s ruling on PSCC was reversed and the case was remanded for correction of the mittimus to reflect PSCC of eighty-nine days.

No. 10CA0079. People v. Maclaren. Vehicular Assault—Driving Under the Influence of Alcohol—Express Consent Statute.

The prosecution appealed the dismissal of defendant’s convictions of vehicular assault and driving under the influence of alcohol. The judgment was affirmed in part and vacated in part.

Defendant was driving when he crossed a double yellow line into oncoming traffic and hit the victim’s car, causing her to suffer a broken wrist. Defendant told a responding emergency medical technician (EMT) that he had consumed beer earlier in the day. He also told the EMT that he had experienced a coughing fit that caused him to black out while he was driving. The investigating officer detected the odor of alcohol on defendant’s breath.

The officer followed the ambulance to the hospital. Without advising defendant or requesting that he submit to a test of his blood alcohol level, the officer had the hospital phlebotomist draw two vials of defendant’s blood for testing. On receiving the results, the officer informed defendant that his license was being revoked.

Defendant filed a motion to suppress the results of the blood test on the grounds that the investigating officer did not have probable cause and, alternatively, that she failed to comply with the requirements of the express consent statute. The trial court found there was probable cause but suppressed the results of the tests after finding the officer had failed to request that defendant submit to breath or blood testing as required by the express consent statute. The court then dismissed the vehicular assault and driving under the influence charges.

The Court of Appeals noted that consent is not a constitutional prerequisite to the collection of a blood sample. Both express consent statutes allow an unauthorized sample to be taken after a refusal by the driver to give a breath or blood sample.

The officer violated the express consent statutes by obtaining a blood sample from defendant when there was neither a request nor a refusal. However, suppression of evidence is generally reserved to remedy violations of constitutional rights, not statutory rights. Suppression for a violation of a statute is not a proper remedy unless the statute requires exclusion of such evidence. Where a statute does not expressly provide for suppression, however, trial courts have broad discretion to suppress evidence as a sanction for improper police conduct.

Here, the trial court found that the officer committed misconduct without justification by extraordinary circumstances or good cause. Therefore, it did not abuse its discretion by suppressing the results of the blood test. However, dismissal was not an appropriate sanction. Accordingly, the suppression of the blood alcohol test was affirmed and the judgment dismissing the cases was vacated. The case was remanded for reinstatement of the charges and further proceedings.

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