People v. Brown

• Decision Date: 20 October 2016
• Docket Number: Court of Appeals No. 14CA0959
• Citation: 417 P.3d 868
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Carl A. BROWN, Defendant–Appellant.
• Court: Colorado Court of Appeals

417 P.3d 868

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Carl A. BROWN, Defendant–Appellant.

Court of Appeals No. 14CA0959

Colorado Court of Appeals, Division III.

Announced October 20, 2016

Rehearing Denied November 10, 2016

Cynthia H. Coffman, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Douglas K. Wilson, Colorado State Public Defender, Rachel K. Mercer, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant

Opinion by JUDGE WEBB

¶ 1 Does the Fourth Amendment allow police officers to impound a car only because the driver and sole occupant was cited—but not arrested—for driving on a suspended license? If the answer is "no," then is the ensuing inventory search unlawful? These are novel questions in Colorado.

¶ 2 A jury convicted Carl A. Brown of possession of a controlled substance (over two grams) and possession of a controlled substance with intent to distribute. The trial court sentenced him to ten years in the custody of the Department of Corrections, plus five years of mandatory parole.

¶ 3 On appeal, Mr. Brown raises contentions of an illegal impoundment and inventory search during which the drugs were discovered, an unlawful peremptory challenge under Batson , improper expert testimony by police officers, prosecutorial misconduct in closing argument, failure to merge the convictions, and the trial court's misunderstanding of its sentencing discretion. Because we agree that the impoundment and inventory search of Mr. Brown's car violated the Fourth Amendment,¹ we reverse and remand for the trial court to grant his motion to suppress.²

I. Impoundment and Inventory Search

A. Background

¶ 4 Aurora police officers pulled Mr. Brown's car over after he failed to make a complete stop at a stop sign.³ During the traffic stop, the officers learned that Mr. Brown was driving on a suspended license. Based on this violation, they chose to issue Mr. Brown a summons, but not to arrest him. Still, the officers decided to impound his car. While waiting for the tow truck, one of them performed an inventory search and found the drugs. Only then did they arrest Mr. Brown.

B. Preservation

¶ 5 The Attorney General asserts that Mr. Brown failed to preserve his contention that impoundment of his car was not constitutionally reasonable, given an exception—discussed more fully below—to the warrant requirement that allows impoundment without a warrant under some circumstances. This assertion misses the mark for two reasons.

¶ 6 First, during the suppression hearing, defense counsel argued:

[The officers] were going to issue a summons and release him. You get to at that point whether or not they had a right to search his car, inventory search his car. And the officer had the discretion, pursuant to their manual, to leave the car on the scene if they can verify the ownership, which they admitted on the stand it was, in fact, Mr. Brown's car. It had valid insurance, registration and plates. At that point the stop should have been over. No further contact should have been conducted.

....

This is an attempt to, in essence, create their own reason to inventory search this car in order to verify an anonymous tip that they were unable to verify earlier.

¶ 7 Second, after the prosecutor defended the impoundment, the trial court ruled against Mr. Brown on the issue. See People v. Syrie , 101 P.3d 219, 223 n.7 (Colo. 2004) (An issue is preserved if "the trial court [has an] adequate opportunity to make factual findings and legal conclusions.").

C. Standard of Review

¶ 8 A trial court's ruling on a motion to suppress presents a mixed question of fact and law. People v. Martinez , 165 P.3d 907, 909 (Colo. App. 2007). We defer to the trial court's findings of fact if they are supported by competent evidence in the record, but we review its conclusions of law de novo. Id. Of course, "[w]e review de novo the trial court's ultimate legal conclusion of whether a seizure violated constitutional prohibitions against unreasonable searches and seizures." People v. Funez–Paiagua , 2012 CO 37, ¶ 6, 276 P.3d 576.

D. Law

1. Inventory Searches

¶ 9 The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. And under the Fourth Amendment, searches conducted without a warrant are presumptively unreasonable, unless the search comes within an exception to the warrant requirement. People v. Vaughn , 2014 CO 71, ¶ 14, 334 P.3d 226. The prosecution bears the burden of overcoming this presumption by establishing one of these exceptions. People v. Winpigler , 8 P.3d 439, 443 (Colo. 1999).

¶ 10 This case concerns the exception that "permits officers to conduct an inventory search of a vehicle without a warrant based on probable cause when that vehicle is lawfully impounded by law enforcement officials." Vaughn , ¶ 14 ; see Colorado v. Bertine , 479 U.S. 367, 371–72, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987) (Because inventory searches further police caretaking procedures, "[t]he policies behind the warrant requirement are not implicated in an inventory search, nor is the related concept of probable cause.") (citation omitted). This exception exists because an inventory search does not seek to obtain evidence but is "designed to protect the owner's property while it is in police custody, to insure against claims concerning lost or damaged property, and to protect the police from any danger posed by the contents of the vehicle." Pineda v. People , 230 P.3d 1181, 1185 (Colo. 2010), disapproved of on other grounds by Vaughn , ¶ 11 n.7.

¶ 11 Still, the decision to impound a vehicle and the ensuing inventory search are separate processes, both of which "must meet the strictures of the Fourth Amendment." United States v. Duguay , 93 F.3d 346, 351 (7th Cir. 1996) ; accord King v. Commonwealth , 39 Va.App. 306, 572 S.E.2d 518, 520 (2002) ("The validity of the impoundment is a question separate from the validity of the subsequent inventory search and must be determined first."). Thus, because the act of impoundment " ‘gives rise to the need for and justification of the inventory [search],’ the threshold inquiry when determining the reasonableness of an inventory search is whether the impoundment of the vehicle was proper." State v. Gauster , 752 N.W.2d 496, 502 (Minn. 2008) (alteration in original) (quoting State v. Goodrich , 256 N.W.2d 506, 510 (Minn. 1977) ).

¶ 12 Mr. Brown acknowledges—as he must—that "[a]fter validly impounding a vehicle, an officer may make an inventory search of its contents." People v. Milligan , 77 P.3d 771, 776 (Colo. App. 2003) (emphasis added). Instead, he asserts that because the prosecution failed to prove the legality of the impoundment, a threshold Fourth Amendment violation occurred, which fatally tainted the inventory search.⁴ Examining this assertion requires us to take a closer look at the law of impoundment.

2. Lawful Impoundment

¶ 13 To begin, everyone would agree that "[t]he impoundment of an automobile is a seizure within the meaning of the Fourth Amendment." Miranda v. City of Cornelius , 429 F.3d 858, 862 (9th Cir. 2005). Even so, an impoundment by the police without a warrant satisfies the Fourth Amendment if it occurs in furtherance of "public safety" or "community caretaking functions," such as removing "disabled or damaged vehicles" and "automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic." South Dakota v. Opperman , 428 U.S. 364, 368–69, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (citation omitted).⁵ Like the exception for inventory searches, this exception to the warrant requirement recognizes that the purpose of the impoundment is not to obtain evidence. In every inventory search case, then, the dilemma between a seizure and the lack of a warrant or other permissive court order must be resolved by determining whether "the state [has] an interest in impoundment that outweighs the individual's Fourth Amendment right to be free of unreasonable searches and seizures." Gauster , 752 N.W.2d at 502.

¶ 14 As part of the legal framework for this determination, when departmental regulations give police the discretion to impound a vehicle, often "decisions to impound will be upheld as long as that discretion has been exercised according to standard criteria." Milligan , 77 P.3d at 776 ; see Bertine , 479 U.S. at 374, 107 S.Ct. 738 ("[R]easonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure."). But not always.

¶ 15 "[T]he fact that officers may have conducted an inventory search in accordance with procedures does not, of itself, necessarily mean that the inventory search was reasonable." People v. Gee , 33 P.3d 1252, 1254 (Colo. App. 2001) ; accord People v. Hicks , 197 Colo. 168, 171, 590 P.2d 967, 969 (1979) ("The words ‘routine inventory search’ are not a ‘talisman in whose presence the Fourth Amendment fades away.’ " (quoting Coolidge v. New Hampshire , 403 U.S. 443, 461, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) )), overruled by People v. Bannister , 619 P.2d 71 (Colo. 1980) ; see also United States v. Sanders , 796 F.3d 1241, 1250 (10th Cir. 2015) ("Protection against unreasonable impoundments, even those conducted pursuant to a standardized policy, is part and parcel of the Fourth Amendment's guarantee against unreasonable searches and seizures."). Thus, by any fair account, a decision upholding an inventory search based on a policy—but without asking whether the criteria for the underlying impoundment satisfy the Fourth Amendment—is like the emperor with no clothes.

E. Analysis

¶ 16 Although a written copy of the Aurora department policy is not in the record, standard policies regulating inventory searches do not need to be in writing. Gee , 33 P.3d...