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People v. Campbell

Court of Appeals of Colorado, First Division

January 25, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Brandon Deshawn Campbell, Defendant-Appellant.

         Jefferson County District Court No. 12CR1091 Honorable Philip J. McNulty, Judge

          Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for Defendant-Appellant

          OPINION

          TAUBMAN, JUDGE

         ¶ 1 Defendant, Brandon Deshawn Campbell, appeals his judgment of conviction entered on jury verdicts finding him guilty of two counts of second degree burglary, one count of attempted second degree burglary, and three counts of criminal mischief. He contends that the trial court erred in denying his motion to suppress global positioning system (GPS) location data obtained via an ankle monitor he wore at the time of his arrest. As a matter of first impression, we conclude that Campbell did not have a reasonable expectation of privacy in the GPS data under the United States or Colorado Constitutions. Because we also perceive no grounds for reversal with regard to Campbell's remaining contentions, we affirm.

         I. Background

         ¶ 2 In late April 2012, the victim, J.P., called 911 to report an intruder in his home. He provided the 911 dispatcher with a description of the intruder and stated that he believed the suspect had driven away in a white Ford Explorer.

         ¶ 3 Officers stopped a white Ford Explorer about ten minutes later approximately three miles from the victim's home. Campbell was the driver and only occupant of the vehicle. Officers searched Campbell and found he was wearing an ankle monitor. A detective later requested and received the GPS data from the company owning the ankle monitor. The GPS data revealed that, within the month before J.P.'s home was broken into, Campbell had been at the location of two other homes when they were burglarized. The GPS data also placed Campbell at J.P.'s house at the time of the break-in. Campbell was convicted of two counts of second degree burglary, one count of attempted second degree burglary, and three counts of criminal mischief.

         ¶ 4 On appeal, Campbell asserts that the trial court erred by denying his motions (1) to suppress evidence obtained as a result of a seizure and subsequent search of his person; (2) to suppress the GPS data obtained from the ankle monitor; (3) for a hearing to assess the admissibility of the GPS data; and (4) to suppress J.P.'s show-up identification. We disagree with all these contentions.

         II. Motion to Suppress Fruit of Seizure and Search

         ¶ 5 Campbell contends that the trial court erred in denying his motion to suppress evidence obtained as a result of an illegal seizure and search of his person. He argues that the officers' use of handcuffs and firearms transformed his seizure into an arrest unsupported by probable cause. In the alternative, Campbell asserts that, even if the officers' use of force did not constitute an arrest, the officers nonetheless lacked reasonable suspicion to conduct an investigative detention. We conclude that the stop and subsequent search were lawful.

         A. Additional Facts

         ¶ 6 Officer Dave Smidt responded to J.P.'s 911 call. He was given the location of the alleged break-in and told that the suspect was a black male driving "an older model SUV, possibly a white Ford Explorer." Less than ten minutes after the victim called 911, Officer Smidt saw a white Ford Explorer driven by a black man in the area of the victim's home. He pursued the vehicle. Officer Smidt testified that he saw the vehicle turn rapidly without signaling before it eventually pulled over. He recounted that "it appeared the car was trying to get away from [him]."

         ¶ 7 After the vehicle stopped, Officer Smidt and another officer who had arrived in a separate car conducted a "felony traffic stop" ― they drew their weapons and ordered Campbell to exit the car, put his hands up, walk backwards toward them, and kneel so that he could be placed in handcuffs. After conducting a pat-down of Campbell, the officers discovered he had an outstanding arrest warrant. He was then placed in the back of one of the police vehicles. He later made incriminating statements that he sought to suppress. Additionally, Campbell sought to suppress evidence of the officers' discovery of the ankle monitor during the pat-down search.

         ¶ 8 In a bench ruling on the motion to suppress, the trial court stated in its findings of fact that Officer Smidt had followed Campbell for "a number of blocks" during which time "it looked like the driver was trying to get away from him." The officer also observed Campbell commit traffic violations, specifically "failure to signal a turn" and potentially speeding by going "faster than [was] prudent in a residential neighborhood." The trial court concluded that the officers had reasonable suspicion sufficient to stop Campbell, and that reasonable suspicion ripened into probable cause to arrest after J.P. identified Campbell as the intruder in a one-on-one showup conducted shortly after he was first stopped. As a result, the trial court denied Campbell's motion to suppress.

         B. Standajrd of Review

         ¶ 9 In reviewing a ruling on a motion to suppress, we defer to a trial court's findings of fact if they are supported by competent evidence in the record. People v. King, 16 P.3d 807, 812 (Colo. 2001). We review conclusions of law de novo. Id.

         C. Applicable Law

         ¶ 10 The United States and Colorado Constitutions protect against unreasonable searches and seizures. U.S. Const. amends. IV, XIV; Colo. Const. art. II, § 7. A warrantless arrest is reasonable when an officer has probable cause to believe that a crime has been or is being committed. Devenpeck v. Alford, 543 U.S. 146, 153 (2004). Because probable cause is an objective inquiry, an officer's subjective intent is irrelevant. See People v. Cherry, 119 P.3d 1081, 1083 (Colo. 2005). Thus, it is irrelevant if the offense that established probable cause is unrelated to the offense actually charged by the arresting officer. Id.

         ¶ 11 "If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (holding that officer had probable cause to make custodial arrest when he observed woman driving without wearing a seatbelt, a criminal violation under state traffic code); see People v. Triantos, 55 P.3d 131, 134 (Colo. 2002); see also § 16-3-102(1)(b), C.R.S. 2017 (authorizing a peace officer to make an arrest when "[a]ny crime has been or is being committed by [a] person in his presence").

         ¶ 12 In the context of vehicle stops, "the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United States, 517 U.S. 806, 810 (1996); see also Cherry, 119 P.3d at 1083. Although minor traffic infractions are classified as "civil matter[s]" under Colorado statute, § 42-4-1701(1), C.R.S. 2017, an officer may constitutionally stop a driver based on observation of even a minor traffic infraction. See Cherry, 119 P.3d at 1084 (concluding that officer's observation of defendant committing two class B traffic infractions justified stop); see also People v. Chavez-Barragan, 2016 CO 16, ¶ 10, 365 P.3d 981, 983 ("Suspicion of even a minor traffic offense can provide the basis for a stop."); People v. Altman, 938 P.2d 142, 145 (Colo. 1997) (concluding that "troopers had a reasonable suspicion that criminal activity had occurred or was occurring" when they observed minor traffic infractions).

         D. Analysis

         ¶ 13 We conclude that the officers constitutionally stopped Campbell on the basis of traffic violations witnessed by Officer Smidt. Further, the officers had probable cause to believe Campbell was committing the felony of vehicular eluding, and therefore constitutionally arrested and searched him. We can affirm "on different grounds than those relied upon by the trial court" if those grounds are supported by "undisputed facts in the record." People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006), as modified on denial of reh'g (Jan. 16, 2007). Campbell has not disputed Officer Smidt's testimony with regard to the observed traffic violations, and does not assert on appeal that the trial court's findings of fact on this point were clearly erroneous.

         ¶ 14 The parties initially limited their arguments to whether the officers had reasonable suspicion to stop Campbell, which was the basis for the trial court's denial of Campbell's motion to suppress. We requested supplemental briefing from both parties on the issue of whether the violations observed by Officer Smidt gave rise to probable cause to stop and arrest Campbell.

         ¶ 15 Officer Smidt testified that he observed Campbell turn without signaling, a class A traffic infraction under Colorado law. See § 42-4-903(2), (5), C.R.S. 2017. We conclude that Officer Smidt's observation of this violation of the traffic code justified the initial stop, regardless of whether the description communicated by the dispatcher independently created reasonable suspicion sufficient to stop the vehicle.

         ¶ 16 In their supplemental brief, the People further argue that the officers had probable cause to believe that Campbell was eluding the officers in violation of section 18-9-116.5(1), C.R.S. 2017, a class 5 felony. The record supports this contention. In its findings of fact, the trial court noted that "it looked like the driver was trying to get away from" the officer because the driver did not stop for several blocks after the officer first activated his lights and sirens. We therefore agree that "the facts and information within the arresting officers' knowledge [we]re ...


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