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                                                          ADVANCE SHEET HEADNOTE
                                                                       March 2, 2020

                                         2020 CO 16

No. 19SA226, People v. Ashford—Fourth Amendment—Scope of Investigatory Stops.

       After a police officer felt a pill bottle in the defendant’s jacket during the course of

an investigatory stop, the officer asked the defendant, “I know this is a pill bottle, what

is it?” In response, the defendant removed a pill bottle from his pocket and showed it to

the officer, who could see that it contained baggies of illegal drugs. In this case, the

supreme court considers whether that question exceeded the scope of the investigatory

stop. Because the supreme court concludes that the officer’s question did not measurably

extend the stop of the defendant, it holds that the question about the pill bottle did not

exceed the scope of the investigatory stop.         Thus, it reverses the district court’s

suppression order.
                  The Supreme Court of the State of Colorado
                  2 East 14th Avenue • Denver, Colorado 80203

                                   2020 CO 16

                     Supreme Court Case No. 19SA226
                  Interlocutory Appeal from the District Court
              El Paso County District Court Case No. 19CR684
                    Honorable Gregory R. Werner, Judge
________________________________________________________________________

                               Plaintiff-Appellant:

                       The People of the State of Colorado,

                                        v.

                              Defendant-Appellee:

                            Tony Lee Ashford.
________________________________________________________________________

                             Order Reversed
                                 en banc
                              March 2, 2020
________________________________________________________________________

Attorneys for Plaintiff-Appellant:
Daniel H. May, District Attorney, Fourth Judicial District
Andrew Lower, Deputy District Attorney
Doyle Baker, Senior Deputy District Attorney
      Colorado Springs, Colorado

Attorney for Defendant-Appellee:
Jennifer Charlier Cox, Deputy Public Defender
      Colorado Springs, Colorado



JUSTICE BOATRIGHT delivered the Opinion of the Court.
¶1    While searching Tony Ashford for weapons in the course of an investigatory

stop, a police officer felt a pill bottle in Ashford’s pocket and asked him, “I know

this is a pill bottle, what is it?” Ashford then took the bottle out of his pocket, and

the officer could see that it contained baggies of methamphetamine. Ashford was

arrested, and after a more thorough search, he was charged with several drug-

related offenses, as well as six habitual offender counts.

¶2    Ashford moved to suppress all evidence obtained as a result of the stop. The

district court granted Ashford’s motion, finding that the officer’s question about

the pill bottle exceeded the scope of the stop.        The People filed this timely

interlocutory appeal.

¶3    Because we conclude that the officer’s question did not measurably extend

the stop of Ashford, we hold that the question about the pill bottle did not exceed

the scope of the investigatory stop.          Thus, we reverse the district court’s

suppression order and remand for further proceedings consistent with this

opinion.

                        I. Facts and Procedural History

¶4    A man told police officers on patrol that he had just argued with Ashford

and Ashford’s girlfriend, and that he was concerned Ashford was going to “lay

hands” on his girlfriend. He further informed the officers that Ashford regularly

sold methamphetamine.
                                          2
¶5    Shortly thereafter, another officer located Ashford and his girlfriend and

asked them to stop so that he could speak with them about the domestic abuse

allegations. Ashford appeared nervous. The officer patted Ashford down for

weapons and felt a pill bottle in Ashford’s jacket pocket. The officer asked

Ashford, “I know this is a pill bottle, what is it?” In response, Ashford removed a

pill bottle from his pocket and showed it to the officer, who could see that it

contained baggies of methamphetamine. The officer then arrested Ashford and

conducted a more thorough search of him, during which he discovered $233 in

small-denomination bills and unused baggies.

¶6    The People charged Ashford with one count each of possession with intent

to manufacture or distribute a controlled substance, possession of a controlled

substance, and possession of drug paraphernalia, as well as six habitual offender

counts.

¶7    Ashford moved to suppress all the evidence obtained as a result of this stop,

and the district court held a hearing. The district court first concluded that the

initial stop of Ashford was supported by reasonable suspicion that Ashford might

be a threat to his girlfriend’s safety; the court further found that the officer had

legitimate safety concerns justifying the pat-down for weapons. However, the

district court then concluded that the officer “exceeded the reasonable scope of the

suspicion that [he] had for the initial contact” when he asked Ashford about the
                                         3
pill bottle because the officer knew that the bottle was not a weapon. The district

court then granted Ashford’s motion to suppress, finding that the officer “had no

constitutional basis to ask [Ashford] to empty out his pockets, to ask what the pill

bottle is, or anything like that.” As a result, the court suppressed all of the evidence

seized.

¶8    In response, the People filed this interlocutory appeal.1

                              II. Standard of Review

¶9    A district court’s ruling on a motion to suppress evidence is a “mixed

question of law and fact.” People v. Allen, 2019 CO 88, ¶ 13, 450 P.3d 724, 728

(quoting People v. Threlkel, 2019 CO 18, ¶ 15, 438 P.3d 722, 727). When reviewing

such an order, we defer to the district court’s factual findings so long as they are

supported by sufficient evidence in the record. Id. But we review the district

court’s conclusions of law de novo. Id.

                                    III. Analysis
¶10   We begin by laying out the controlling authority for investigatory stops. We

next apply that law to the facts and conclude that the officer’s question about the




1The People have certified that this appeal was not taken for the purposes of delay
and that the pill bottle and all related evidence are a substantial part of the proof
of all charges against Ashford, as required by section 16-12-102(2), C.R.S. (2019),
and C.A.R. 4.1(a).
                                           4
pill bottle did not measurably extend the stop of Ashford, meaning it did not

exceed the scope of the investigatory stop.

                                       A. Law

¶11    Both the U.S. and Colorado Constitutions protect against “unreasonable

searches and seizures.” U.S. Const. amend. IV; Colo. Const. art. II, § 7. Typically,

searches and seizures must be supported by probable cause to be reasonable. U.S.

Const. amend. IV; Colo. Const. art. II, § 7. However, in certain circumstances, a

police officer’s stop of an individual may be reasonable despite the lack of

probable cause.     See Terry v. Ohio, 392 U.S. 1, 20–21 (1968).        One of those

circumstances is an investigatory stop, where an officer can briefly stop an

individual if the officer is “operating with a reasonable suspicion of criminal

activity.” People v. Ingram, 984 P.2d 597, 603 (Colo. 1999). Within an investigatory

stop, an officer is further permitted to conduct a search for weapons if the search

is “limited to that which is necessary for the discovery of weapons which might be

used to harm the officer or others nearby.” Terry, 392 U.S. at 25–27.

¶12    An investigatory stop complies with the Fourth Amendment if it satisfies

three criteria:

       (1) [T]he [investigating] officer [has] “an articulable and specific basis
       in fact for suspecting (i.e., a reasonable suspicion) that criminal
       activity has taken place, is in progress, or is about to occur”; (2) the
       intrusion’s purpose [is] reasonable; and (3) the character and scope of
       the intrusion [are] “reasonably related to its purpose.”
                                           5
People v. Reyes-Valenzuela, 2017 CO 31, ¶ 11, 392 P.3d 520, 522–23 (quoting People v.

Salazar, 964 P.2d 502, 505 (Colo. 1998)).

¶13   Under the third criterion, “a shift in investigatory purpose is not improper

when the underlying detention remains lawful.”           People v. Chavez-Barragan,

2016 CO 66, ¶ 26, 379 P.3d 330, 336 (citing Muehler v. Mena, 544 U.S. 93, 100–01

(2005), and Arizona v. Johnson, 555 U.S. 323, 333 (2009)). Moreover, “off-topic

questioning is permissible as long as it does not ‘measurably extend’ the stop.” Id.,

379 P.3d at 337 (quoting Johnson, 555 U.S. at 333). In other words, “the permissible

scope of an investigatory stop is not exceeded by making inquiries that do not

measurably delay” the investigatory stop, so long as those inquiries do not extend

beyond “the time necessary to diligently investigate for [the stop’s] original

purpose.” People v. Ball, 2017 CO 108, ¶¶ 10–11, 407 P.3d 580, 584.

¶14   We applied this law in Ball. In that case, an officer approached a car based

on reasonable suspicion that an argument between the car’s occupants would

escalate to domestic violence. Id. at ¶¶ 4, 7, 407 P.3d at 583. Because the officer

recognized symptoms of drug use, he asked one of the car’s occupants if he could

speak to her; she consented, and when she left the car, the officer asked her

“whether there was anything illegal in the car and . . . when she had last used

methamphetamine.” Id. at ¶ 6, 407 P.3d at 583. At that point, the woman offered

to show the officer the methamphetamine, pipe, and scale that were in the car. Id.
                                            6
The district court concluded that the initial stop was permissible because it “was

justified by reasonable suspicion to investigate for domestic violence.” Id. at ¶ 7,

407 P.3d at 583. However, it ruled that the officer “exceeded the parameters of the

investigatory stop” once he realized that no acts of domestic violence were

occurring but nevertheless continued to ask about drugs. Id. We reversed because,

as relevant here, the officer used “minimally intrusive investigative methods” that

“fell well within the range of techniques associated with diligently pursuing a

limited investigatory stop.” Id. at ¶ 14, 407 P.3d at 585. Thus, the officer’s question

about what was in the car and when the defendant had last used

methamphetamine did not measurably extend the stop.               See id. at ¶¶ 10–14,

407 P.3d at 584–85.

¶15   With these principles in mind, we now turn to the facts of Ashford’s case.

                                  B. Application

¶16   The district court here effectively concluded that the officer’s stop of

Ashford satisfied the first two requisite criteria for a valid investigatory stop

because (1) the initial stop was supported by reasonable suspicion that Ashford

might be a threat to his girlfriend’s safety;2 and (2) the officer had legitimate safety




2 Ashford asks us to review whether the stop was supported by reasonable
suspicion. However, the scope of our review is limited to the district court’s
                                           7
concerns justifying the search for weapons, rendering the initial pat-down

reasonable. Thus, the issue is whether the third criterion—that the character and

scope of the intrusion were reasonably related to the stop’s purpose—was

satisfied. We conclude that it was.

¶17   The facts of this case are comparable to those in Ball. As in that case, the

district court found that the officer here had reasonable suspicion to investigate

Ashford for domestic violence. During his brief search of Ashford for weapons,

the officer felt what he thought was a pill bottle and asked Ashford one short

question about it. This led to Ashford producing the pill bottle without any

request to do so by the officer. While the question was off-topic, we have explicitly

stated that off-topic questioning is permissible so long as it does not measurably

extend the investigatory stop. See Chavez-Barragan, ¶ 26, 379 P.3d at 337. The

officer asked a single question, which took mere seconds. Hence, like in Ball, the

question asked here was minimally intrusive and did not measurably extend the

investigatory stop.

¶18   Thus, we hold that the question about the pill bottle did not exceed the scope

of the investigatory stop.




reasoning supporting the suppression order under C.A.R. 4.1. See Ball, ¶ 12,
407 P.3d at 584 (citing People v. Weston, 869 P.2d 1293, 1297 (Colo. 1994)).
                                         8
                                IV. Conclusion

¶19   For the foregoing reasons, we reverse the district court’s suppression order

and remand for further proceedings consistent with this opinion.




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