People v. McCarty, 09SA161.

Decision Date10 May 2010
Docket NumberNo. 09SA161.,09SA161.
Citation229 P.3d 1041
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant v. John Jacob McCARTY, Defendant-Appellee.
CourtColorado Supreme Court

Pete Hautzinger, District Attorney, Twenty-First Judicial District, Christopher Nerbonne, Deputy District Attorney, Grand Junction, Colorado, Attorneys for Plaintiff-Appellant.

Peters & Nolan, LLC, Andrew J. Nolan, Grand Junction, Colorado, Attorneys for Defendant-Appellee.

Justice COATS delivered the Opinion of the Court.

The People brought an interlocutory appeal, as authorized by section 16-12-102(2), C.R.S. (2009), and C.A.R. 4.1, challenging the district court's suppression of drugs seized from a vehicle driven by the defendant. After being followed from an import store that was the object of police surveillance and being stopped for a traffic infraction, the defendant conceded buying a "pot pipe" at the store, took the as yet unwrapped pipe from his pocket, and turned it over to the police. The district court found that these circumstances did not provide the officers with probable cause to search the defendant's vehicle or justify a search of the vehicle incident to the defendant's arrest.

Under the circumstances of this case, as determined by the district court, the arresting officers lacked probable cause to support a warrantless search of the defendant's vehicle or justification for a search incident to his arrest, as that doctrine was subsequently clarified in Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). In addition, the officers' search in this case did not fall within any recognized good-faith exception to the Fourth Amendment exclusionary rule. The district court's order suppressing the drugs seized from the defendant's vehicle is therefore affirmed, and the case is remanded for further proceedings consistent with this opinion.


Following a traffic stop of John McCarty on December 19, 2008, and the subsequent recovery of a glass pipe from his person and drugs from the vehicle he was driving, he was charged with possession of drug paraphernalia and more than one gram of methamphetamine. He moved for suppression of the pipe and drugs, arguing that both were the products of an illegal stop and detention of his person and that the drugs were the product of an illegal search of his vehicle. After hearing the motion, the district court ordered suppression of the drugs but denied suppression of the pipe. Pertinent to the portions of the suppression order interlocutorily appealed here by the People, the court made the following findings and conclusions.

Officers conducting surveillance of an import store they suspected of illegal activities observed the defendant leaving the store, followed his vehicle, and stopped it a short while later for momentarily crossing a solid white center line. When he was unable to provide proof of insurance, the defendant was escorted from the vehicle and asked for permission to search it. Upon declining to give his permission, the defendant was questioned about his recent movements and confronted with police observations that conflicted with his account. In response to a direct question whether he had purchased a pipe at the import store, the defendant conceded that he had and produced from his pocket a glass pipe, which he described as a "pot pipe," unused and still in its packaging. While one of the officers remained with the defendant, the other searched his vehicle and discovered a mint tin in the center console containing suspected methamphetamine.

The district court found adequate grounds to support the stop and detention of the defendant, and although he had failed to provide proof of insurance, it found that he was not under arrest at the time he turned the pipe over to the officers. It also held, however, that discovering a new, unused glass pipe under these circumstances did not provide probable cause to believe evidence of a crime would be found in the defendant's vehicle, and it therefore rejected the People's argument that the warrantless search of the defendant's vehicle fell within the so-called automobile exception to the Fourth Amendment warrant requirement.

For two separate reasons, the court also rejected the assertion that the search was a validly executed search incident to the defendant's arrest. First it found that possession of drug paraphernalia, a class 2 petty offense in this jurisdiction, is not an offense for which a custodial arrest is authorized. Relying on Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), which permits a full search incident to arrest only upon a custodial arrest, it therefore held that the search of the defendant's vehicle could not possibly have been a constitutionally-valid search incident to arrest for possessing drug paraphernalia. In addition, apparently because it found that the officers also had probable cause to arrest the defendant for failing to provide proof of insurance, the court noted the Supreme Court's clarification of the search incident to arrest exception in Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), released subsequent to the search in this case. The district court held that under Gant, and contrary to the precedent of this court existing at the time of the search, officers may search a vehicle incident to a recent occupant's arrest under the Chimel1 rationale only if the occupant could still access the vehicle at the time of the search, which the defendant could not. Although this second ground derived from a post-search legal development, the district court did not address the People's assertion that the exclusion of evidence was not the proper remedy for an unconstitutional search conducted in good-faith reliance on the then-existing precedent of this court.

The People immediately filed an interlocutory appeal, as authorized by section 16-12-102(2), C.R.S. (2009), and C.A.R. 4.1, renewing their claim that the search was constitutionally permitted according to the automobile exception; as a search incident to arrest, even as that doctrine was clarified in Gant; and because the officers acted in good faith, in conformity with the then-existing case law of this jurisdiction.


In New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the United States Supreme Court applied its search-incident-to-arrest jurisprudence to the motor vehicle context, articulating what many jurisdictions, including this one, understood to be a bright-line rule permitting a search of the passenger compartment of a vehicle incident to the arrest of a recent occupant, without regard to his actual ability to access the vehicle at the time of the search. See, e.g., People v. Savedra, 907 P.2d 596, 598 (Colo.1995). Following the search in this case but before the district court's suppression ruling, the Supreme Court clarified its holding in Belton, as well as its subsequent application of that ruling in Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), and explained that the search of a vehicle incident to the arrest of a recent occupant can be justified only if the arrestee was unrestrained and within reaching distance of the passenger compartment at the time of the search or if it was reasonable for the arresting officers to believe that evidence relevant to the crime of arrest might be found in the vehicle. Gant, ___ U.S. at ___, 129 S.Ct. at 1719. While this articulation of the standard admittedly added a new "evidence gathering" rationale, not derived from Chimel, the Gant majority firmly rejected any broad understanding of Belton as applying the Chimel rationale to searches beyond the arrestee's reaching distance. Gant, ___ U.S. at ___, 129 S.Ct. at 1718-19.

Because the officers had probable cause to arrest the defendant for failing to provide proof of insurance and because, as even the defendant concedes, the district court erred in finding that possession of drug paraphernalia was not an offense for which one could be subjected to a custodial arrest,2 this search would have been justified as a search incident to arrest by this court's prior broad reading of Belton. If, as the People contend, the exclusionary rule of evidence cannot be applied to a search conducted in good-faith compliance with the then-existing precedent of this court, the district court's suppression order cannot stand, even if the search in this case failed to comport with the dictates of Gant.


Although the Fourth Amendment exclusionary rule is held to apply to the states through the Fourteenth Amendment, it is neither a specific provision, nor even a necessary corollary, of the Fourth Amendment itself. United States v. Leon, 468 U.S. 897, 905-06, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). It is not a personal right of any aggrieved party but rather operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect. Id. at 906, 104 S.Ct. 3405. As such, the question whether an exclusionary sanction should be imposed in any particular class of cases is largely a matter of policy, to be resolved by the Supreme Court by weighing the costs and benefits of its application to that class of cases. Id. at 906-07, 104 S.Ct. 3405.

Implementing this balancing approach, the Supreme Court has limited the types of proceedings, or stages of those proceedings, at which the exclusionary rule may be applied; the parties in whose favor it may be applied; and even the purposes for which it may be applied. With regard to the kinds of executive branch conduct for which imposition of the exclusionary sanction is considered more costly than beneficial, the Court has created an exception for objective good-faith reliance on judicially-issued warrants, see Leon, 468 U.S. at 922, 104 S.Ct. 3405; Massachusetts v. Sheppard, 468 U.S. 981, 987-88, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984); see also Arizona...

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