People v. Kirk, No. 04SA206.

Decision Date10 January 2005
Docket NumberNo. 04SA206.
Citation103 P.3d 918
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Dolores Elaine KIRK, Defendant-Appellee.
CourtColorado Supreme Court

Robert S. Grant, District Attorney Seventeenth Judicial District, Michael J. Milne, Senior Deputy District Attorney, Brighton, for Plaintiff-Appellant.

Paul Grant, Englewood, for Defendant-Appellee.

Justice RICE delivered the Opinion of the Court.

Plaintiff-Appellant, the People of the State of Colorado, bring an interlocutory appeal of the trial court's suppression of evidence it planned to offer in a criminal prosecution against Defendant-Appellee, Dolores Kirk. Since the evidence was obtained in an objectively reasonable search incident to an arrest, no constitutional violation exists. Therefore, we reverse the trial court's suppression order.

I. Facts and Proceedings Below

On May 21, 2003, Officer Karl Scherck of the Westminster Police Department stopped a vehicle with a "shattered" windshield in the right traffic lane of Federal Boulevard. The driver, Joshua Wilson, did not own the vehicle, and he could not produce either his driver's license or a vehicle insurance card.

Through the Colorado Department of Motor Vehicles database, Officer Scherck was able to verify that Wilson did hold a valid driver's license. However, since Wilson had not produced proof of insurance, and the existence of insurance could not be verified in the state database, Officer Scherck issued Wilson a summons for operating a motor vehicle without proof of insurance. Officer Scherck also issued an impound order and requested a tow truck because "[t]he vehicle had no insurance. I just couldn't let that vehicle drive away, for liability purposes." Around this time, Officer Scott Hopkins arrived to offer back-up assistance. After Wilson signed the lack of insurance summons, Officer Scherck sought and received consent to search Wilson's person for drugs, weapons, or other contraband. A baggie of suspected methamphetamine was discovered in Wilson's front pants pocket. Officer Scherck arrested Wilson and placed him in the squad car.

As he later testified, Officer Scherck then had reason to suspect there might be additional evidence of criminal activity: "I took dope off the driver and, you know, chances are pretty good there was more dope inside the car." Nonetheless, Officer Scherck merely approached the vehicle and addressed Defendant, who was still sitting in the front passenger seat. He explained that the vehicle was going to be impounded because Wilson was under arrest, and no one had produced proof of insurance. Defendant became "frantic" and asked if she could search through the vehicle which apparently was loaded with a myriad of her personal belongings. She told both officers that the vehicle was insured and her card was somewhere in the vehicle. Officer Scherck then allowed Defendant to search the vehicle.

Defendant rummaged through the vehicle for several minutes. Then, just as the tow truck started backing up toward the vehicle, Defendant testified, she found her insurance card. Officer Scherck, however, testified that he did not recall whether Defendant ultimately had produced proof of insurance. Still, he explained that even if she had found her insurance card, it may have been too late to avoid impoundment. And, according to Officer Scherck, proof of insurance "was not produced before [the tow company] had [the vehicle] on their flatbed and they signed the impound sheet." Officer Hopkins agreed, testifying that "[t]he tow arrived and she was unable to find proof of insurance."

Officers Scherck and Hopkins then conducted the requisite inventory search of the vehicle's contents in accordance with Westminster Police Department impoundment procedure. A black, backpack-style purse was located on the floorboard of the front passenger seat where Defendant had been sitting. When asked if it was hers, Defendant said yes and that some of the contents were hers as well. Inside the purse, Officer Scherck found a baggie of suspected methamphetamine. He then placed Defendant under arrest.

Defendant was charged with unlawful possession of a controlled substance on July 25, 2003. Before trial, she sought suppression of the methamphetamine found in her purse and any statements made to the officers during their search of the vehicle, which she argued was unreasonable under the Fourth Amendment to the United States Constitution. The trial court held a suppression hearing, at which the People called former Officer Scherck and Officer Hopkins.1 Both testified that Defendant was unable to produce proof of insurance before they began searching the vehicle, and Officer Scherck explained that he ordered impoundment in accordance with Westminster Police Department policy. Defendant then took the stand and testified that she tried to show Officer Scherck her insurance card just as the tow truck was approaching the vehicle.

At the close of the evidence, the prosecuting attorney chose not to make a closing argument, instead reserving his argument for rebuttal. Defendant's counsel then argued that the inventory search was unreasonable because the underlying impoundment was unauthorized. Westminster Police Department policy, according to the defense, vested too much discretion in the police officer; therefore, it could not be characterized as a standardized operating procedure.

On rebuttal, the prosecuting attorney sought to argue that the search was reasonable because it was a search incident to Wilson's arrest. Defendant's counsel objected, pointing out that this position was beyond the scope of his closing argument. Although the trial judge agreed with the defense and stated that he would not consider whether the search was reasonable as incident to Wilson's arrest in reaching his suppression ruling, the trial judge allowed the prosecuting attorney to make a record of this argument for appeal. After doing so, the prosecuting attorney finished his rebuttal by arguing that Officer Scherck fully complied with the standardized Westminster Police Department's policy governing vehicle impoundment.

Despite its admonishment that it would not consider whether the search was reasonable as incident to Wilson's lawful arrest, the trial judge later stated:

[The prosecuting attorney] would ask the Court to believe that that's what this search was, that it was incident to the arrest of Mr. Wilson. The Court respectfully disagrees. The search was done based upon an impound order. The Court finds that the impound order was done prior to anyone talking to the owner of the car.

After making further findings, the trial court then concluded that since the vehicle actually was insured at the time Officer Scherck issued the impound order, Defendant's failure to produce proof of insurance was insufficient to support the vehicle's impoundment. As the impound order was unauthorized, the inventory search could not be incident to it and therefore, was unreasonable. Accordingly, the trial court suppressed admission of the suspected methamphetamine discovered in Defendant's purse as well as any statements she made to the police officers that were incident to the unreasonable search. The People now appeal, asking us to reverse this suppression of evidence.

II. Standard of Review

When reviewing a suppression order, we must determine whether the trial court's factual findings, though entitled to deference, e.g., People v. Hardrick, 60 P.3d 264, 266 (Colo.2002),

"are adequately supported by competent evidence in the record." People v. Jordan, 891 P.2d 1010, 1015 (Colo.1995) (emphasis omitted) (citing People v. LaFrankie, 858 P.2d 702, 706 (Colo.1993)). We also review de novo whether the trial court applied the correct legal standard, considering the totality of the circumstances. E.g., People v. Syrie, 101 P.3d 219, 221-22 (Colo.2004). Moreover, "`[w]hen ... the controlling facts are undisputed, the legal effect of those facts constitutes a question of law.'" People v. D.F., 933 P.2d 9, 15 (Colo.1997) (quoting Lakeview Assocs., Ltd. v. Maes, 907 P.2d 580, 583-84 (Colo.1995)).

Thus, we essentially examine the "`interrelationship between the evidentiary facts of record, the findings of the trial court, and the applicable legal standards in review of the lower court's conclusion of law.'" Syrie, 101 P.3d at 221-22 (quoting D.F., 933 P.2d at 13). In addition, we will correct conclusions of constitutional law that are either inconsistent with or unsupported by evidentiary findings, as well as any applications of erroneous legal standards. E.g., People v. Miranda-Olivas, 41 P.3d 658, 661 (Colo.2001)

. We make this correction freely "where the record below reveals no conflicting evidence regarding the details of the encounter" because "remand is unnecessary where the appellate court can apply the correct legal standard." Id. (citing People v. Johnson, 865 P.2d 836, 840 (Colo.1994)).

III. Analysis

Neither the People nor Defendant challenges the trial court's factual findings in this case, and we agree they are adequately supported by competent evidence in the record. Thus, in reviewing the suppression order, we only need determine whether the trial court applied the correct legal standard and made proper conclusions of constitutional law under the totality of the circumstances. We conclude that it did not.

Instead, we hold that Officers Scherck and Hopkins' search of the vehicle, including Defendant's purse located within, was reasonable as a valid search incident to Wilson's arrest. Accordingly, the trial court's suppression of the fruits of this search was erroneous.

As a preliminary matter, we note that although the People did not raise the search incident to arrest argument until rebuttal, we do not agree with Defendant that it should not be considered on appeal. Suppression for a procedural flaw in argument does not serve the purpose of the exclusionary rule, which is solely to...

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