¶1dissenting.
¶2Because I conclude that there was no constitutional basis for the officer to make an investigatory stop in this case, I respectfully dissent from Part I of the majority opinion.
¶3As noted by the majority, the area surrounding the convenience store was known for narcotics activity, defendant and another man were standing near the front of the store in broad daylight, a third man with money in his hand was walking towards the two men, and the three men engaged in conversation. However, the money was not transferred from one person to another, no other item was exchanged by the parties, and no part of the conversation was overheard by the officers. Indeed, as the prosecution properly concedes, there was no basis for an investigative stop at this time.
¶4After the officers arrived in the parking lot and as they walked towards defendant, he simply put his hand behind his back. The officer's response was to draw his weapon. The officer's testimony was as follows:
Q. When you took this gun out and put it in what you call the low ready position, what did the defendant do?
A. - Nothing. He just remained in that position.
With his hand behind his back? ©
Yes, siv. p
And did you ask him to do anything? ©
I gave him commands about three or four times to let me see his hands. p
And what did he do? ©
Well, initially-I mean, the first few commands, he didn't do anything. He just remained in that position. And finally he was showing me his hands like, What? >
Q. -What did you do at that point?
A. I went behind the defendant, had him put his hands on top of his head, re-hoistered my weapon, and conducted a pat-down search.
Q. And why are you pat-doing a pat-down search at this point even though he had showed you his hands?
A. Well, I mean, he had loose-fitting clothing that was covering his waistband area. And due to his actions, I felt that he might have a weapon on him, a gun.
¶5The most recent decision of our supreme court to address the issue of investigatory stops is Outlaw v. People, 17 P.3d 150 (Colo.2001). The facts in that case and this are significantly different. However, in reversing a decision by a division of this court approving an investigatory stop, our supreme court noted again that a history of past criminal activity in an area is insufficient, without more, to create a reasonable suspicion that a crime has been or will be committed. Similarly, a gathering of individuals in a public area, standing alone, is insufficient to justify an investigatory stop. Indeed, the court noted that "[pleaceable gatherings are a hallmark of our democracy, explicitly protected *1220in both the United States and Colorado Bill of Rights." Outlaw v. People, supra, 17 P.3d at 157. Finally, the court noted again that a "furtive gesture," standing alone, is insufficient to warrant an investigatory stop. See People v. Thomas, 660 P.2d 1272 (Colo.1983), overruled in part by People v. Archuleta, 980 P.2d 509 (Colo.1999); see also People v. Greer, 860 P.2d 528 (Colo.1993).
¶6In discussing the various factors that may or may not warrant an investigatory stop, the Outlaw court cited the recent opinion in United States v. Davis, 94 F.3d 1465 (10th Cir.1996), on several occasions. I view that case as particularly instructive and as requiring reversal of the trial court's ruling here.
¶7In Davis, three officers were patrolling an area in a city where various complaints had been received regarding gun shots in the vicinity of a building was known as a "juice joint," 4.e., a business that sells liquor without a license. One of the officers testified that in the past he had investigated two shootings in this area and had been involved in eight arrests relating to drug sales or gun use. The officer also stated that gangs such as the "Crips" and the "Bloods" occupied the area and sold drugs there.
¶8The three officers arrived in a marked patrol car and observed a vehicle with four occupants parked near the juice joint. The accused was one of the occupants. He exited the vehicle upon observing the officers, and, as he did so, he made eye contact with one of the officers. The accused then began walking towards the juice joint with his hands in his pockets. The officer knew that the accused was an ex-convict who had been acquitted of a gang-related homicide. The officer had also received information that the accused had sold narcotics in the past.
¶9The officer instructed the accused to stop and take his hands out of his pockets, but the accused ignored the command and continued walking. The officer testified that he was concerned at that point with officer safety and believed that the accused might be hiding a firearm.
¶10Two of the officers grabbed the accused by the arms and told him to place his hands on top of the vehicle Instead, the accused stepped inside the vehicle and threw a firearm into the backseat.
¶11In response to the accused's motion to suppress, the government relied upon four factors as grounds for an investigative stop: (1) the accused's car was parked outside a known criminal establishment; (2) the accused exited the vehicle when he saw the officers, made and broke eye contact, and then refused to stop; (8) the accused ignored the officer's request to take his hands out of his pockets; and (4) the officers knew that the accused had a prior criminal record. However, the Davis court held that none of these factors, standing alone, provided a lawful basis for an investigative detention. More important, the court also held that, taken together, those factors were insufficient. |
¶12With reference to the fact that the accused placed his hands in his coat pocket and refused to remove them, the court noted that it was a December night. The court emphasized that no evidence was presented that the officers possessed any particularized basis for suspecting that the accused was armed. Rather, the officer testified that his suspicion of the accused was based simply on his "perception" after ten years on the police force.
¶13In rejecting this perception as a basis for an investigative stop, the Davis court noted that there was no evidence of a suspicious bulge in the accused's pockets, there was nothing to indicate that the accused appeared to be hiding anything, and there was no informer who had previously indicated that the accused was either armed or carrying drugs.
¶14Here, like Davis, the officers had no particularized knowledge that defendant was carrying a weapon. Further, there wis no suspicious bulge in his pants or pockets, and there was no informer who suggested that defendant was armed or selling narcotics. Indeed, unlike Davis, the officers had no knowledge whatsoever at the time of any prior criminal activity by this defendant. And, there are many reasons one may postulate for reaching behind one's back as, for example, to retrieve a wallet from a back pocket, to scratch the back, or to pull up one's pants.
¶15*1221Here, however, and unlike Davis, defendant actually showed his hands in response to a repeated command. Further, a pat-down of his waistband failed to reveal any weapons whatsoever. Finally, I can draw no meaningful distinetion in terms of generating a reasonable suspicion on the part of an officer between a person with his hands in a coat pocket where a weapon could be concealed and a person with his hand in a waistband.
¶16Accordingly, under all of these circumstances, in my view the investigatory stop and the subsequent search were constitutionally impermissible because they were not based upon a specific factual basis for suspecting that a crime had been or was being committed. See Outlaw v. People, supra. To conclude otherwise means, in my view, that the unfortunate citizen who stops for a cup of coffee at a convenience store in a high-crime area, speaks to other customers, and then places his hand behind his back when an officer approaches is legitimately subjected to detention, possible handeuffing, and pat-down searches.
¶17I would reverse the judgment of conviction and remand the case with directions to grant defendant's motion to suppress.