People v. Hopper

• Decision Date: 07 July 2011
• Docket Number: No. 08CA1767.,08CA1767.
• Citation: 284 P.3d 87
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Brent Arnold HOPPER, Defendant–Appellant.
• Court: Colorado Court of Appeals

284 P.3d 87

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

v.Brent Arnold HOPPER, Defendant–Appellant.

No. 08CA1767.

Colorado Court of Appeals, Div. II.

July 7, 2011.

John W. Suthers, Attorney General, Alice Q. Hosley, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Nathaniel E. Deakins, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge DAILEY.

Defendant, Brent Arnold Hopper, appeals the judgments of conviction entered on jury verdicts finding him guilty of two counts of possession of a controlled substance and two special offender sentencing counts. He also appeals the length of his mandatory parole term. We affirm but remand for correction of the mittimus regarding, inter alia, the length of mandatory parole.

I. Background

In March 2007, the police stopped the vehicle defendant was driving to execute an arrest warrant for one of the two other men (i.e., Ryan Bowler and Rodney Putney) riding in the car. After the three men were removed from the vehicle, the police searched it, finding a rifle in the back seat; a sawed-off shotgun on the front floorboard; a handgun on the rear floorboard; drug paraphernalia (including spoons, cotton swabs, and syringes); and a bag of cocaine and a bag of methamphetamine, both under the driver's seat.

Defendant was charged, as pertinent here, with two counts of possession of a controlled substance, two special offender counts, and one count of possession of a dangerous weapon. He unsuccessfully moved to suppress the evidence seized from the vehicle on the basis that the police lacked the requisite grounds to stop the vehicle.

At his early 2008 trial, both Bowler and Putney denied putting the guns or drugs in the vehicle. According to them, at the time they were stopped, they were on their way to help defendant rob a woman who allegedly owed him money. Bowler related that, the previous night, the three men had discussed how drugs and guns would be involved in the robbery. Based on the evidence found in the vehicle and Bowler's and Putney's testimony, the People asserted that defendant was guilty either of directly possessing the guns and drugs or, alternatively, of being complicit in the others' possession of those items.

Defendant argued that, because Bowler and Putney had pending charges against them, they had a motivation to lie and blame him for their activities. He asserted that, unbeknownst to him, they had brought the illegal items into the vehicle and that, after he was removed from the vehicle, they repositioned those items to implicate him in their crimes. During his case-in-chief, defendant called Stanley Davis to testify that, while in jail, Bowler had “rant [ed] and rav[ed]” that the guns and drugs were his and that they had been thrown under defendant's seat so that defendant would “get stuck with it.”

The jury acquitted defendant of possessing a deadly weapon but found him guilty of the remaining charges and special offender counts. Before sentencing, he filed a Crim. P. 33 motion for new trial based on newly discovered evidence, which the court denied after conducting a hearing. The court then sentenced defendant to sixteen years imprisonment and five years of mandatory parole.

II. Suppression Ruling

Defendant contends that, because he and his companions were outside the vehicle, in police custody, at the time the vehicle was searched, and the police had no reason to believe that evidence related to the arrest would be found in the vehicle, the evidence seized during that search must be suppressed under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). We disagree.

In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the United States Supreme Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” 453 U.S. at 460, 101 S.Ct. at 2864 (footnote omitted). In Colorado, Belton was understood as establishing a bright line test: if an occupant of a car was arrested, the passenger compartment of that vehicle could be searched. See Perez v. People, 231 P.3d 957, 960 (Colo.2010); see also People v. Kirk, 103 P.3d 918, 922 (Colo.2005) (Belton permits an officer to search the passenger compartment of a vehicle even “after the suspect has been removed from the vehicle, [and] even when the suspect is away from the vehicle and safely within police custody at the time of the search”).

In Gant, however, the United States Supreme Court rejected such a broad reading of Belton when it concluded that “[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 556 U.S. at 351, 129 S.Ct. at 1723.

Perhaps because Gant was decided after his trial, defendant failed to contest the validity of the vehicle search in the trial court.¹ Ordinarily, we would not address a ground for suppressing evidence that was not presented to the trial court. See, e.g., People v. Huynh, 98 P.3d 907, 913 (Colo.App.2004) (declining to address argument not raised in suppression hearing); People v. Rogers, 68 P.3d 486, 490 (Colo.App.2002) (same); People v. White, 64 P.3d 864, 871 (Colo.App.2002) (same).

We need not determine, however, whether the nature of the Gant decision, combined with its timing relative to the date of the search or trial here, excused defendant from having to contest the validity of the vehicle search in the trial court.² Even assuming that the Gant issue is properly before us, we conclude that under the circumstances of this case, Gant does not provide defendant with a right to the relief he wants, that is, suppression of evidence.

In Davis v. United States, 564 U.S. ––––, ––––, 131 S.Ct. 2419, 2434, 180 L.Ed.2d 285 (2011), the United States Supreme Court held that the exclusionary rule did not apply where the vehicle search was conducted before Gant but in compliance with the applicable Eleventh Circuit Court of Appeal's interpretation of Belton which, as in Colorado, established a bright-line rule authorizing the search of a vehicle's passenger compartment incident to a recent occupant's arrest. The Court reasoned:

It is one thing for the criminal “to go free because the constable has blundered.” It is quite another to set the criminal free because the constable has scrupulously adhered to governing law. Excluding the evidence in such cases deters no police misconduct and imposes substantial social costs. We therefore hold that when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.

Id. at ––––, 131 S.Ct. at 2434 (citation omitted) (quoting People v. Defore, 242 N.Y. 13, 150 N.E. 585, 587 (1926)).³

In the present case, defendant conceded in the trial court that the search of the vehicle was proper under the then applicable binding precedent of the Colorado Supreme Court.⁴ Under Davis, then, he is not entitled to have the evidence seized from that search suppressed.

III. Special Offender Interrogatories

Defendant also contends that the trial court erred in submitting to the jury two special offender interrogatories, neither of which included a culpable mental state element. Again, we disagree.

Over defendant's objection, the court submitted the following special interrogatory to the jury on the verdict forms for each of the drug counts:

Do you find beyond a reasonable doubt that the defendant did use, display, possess or have available for use a deadly weapon while committing the offense of Possession of a Controlled Substance ... to wit: an SKS 7.62 X 39 rifle?

On appeal, defendant concedes that these interrogatories track the language of the applicable version of the special offender statute, and that version does not explicitly include any culpable mental state elements. See Ch. 71, sec. 1, § 18–18–407(1)(f), 1992 Colo. Sess. Laws 362; cf.§ 18–18–407(1)(f), C.R.S.2010 (provision amended effective Aug. 11, 2010).⁵ He asserts, however, that the relevant version of section 18–18–407(1)(f) implicitly requires a mens rea of knowingly and that the court's unwillingness to include such a mental state in the interrogatories was prejudicial error.

Our courts have rejected these same arguments, made with respect to other, analogous parts of the special offender statute. See Whitaker v. People, 48 P.3d 555, 560 (Colo.2002) (because the special offender statute does not create a substantive offense and does not contain a culpable mental state element in its importation subsection, the “special offender statute's importation [circumstance] does not include a mens rea requirement”); People v. Ramirez, 997 P.2d 1200, 1205, 1208 (Colo.App.1999) (because subsection (1)(e) of the special offender statute does not require a mens rea element, once a jury has determined that a defendant possessed the mental state required for conviction of the underlying substantive offense, an enhanced sentence under the relevant version of section 18–18–407(1)(e) “must be imposed whether or not the defendant fully knew of the circumstances leading to the special offender finding”), aff'd,43 P.3d 611 (Colo.2001).

Contrary to defendant's assertion, we perceive no pertinent linguistic or structural difference between the special offender provision at issue here, former section 18–18–407(1)(f), and those at issue in Whitaker and Ramirez⁶ to warrant a result different from those cases.

In so concluding, we reject defendant's assertion that, because the provision at issue does not concern an act related to the drug which forms the basis of the crime, but rather, concerns the presence of an item (a deadly weapon)...