People v. Veren, No. 03CA1820.

• Decision Date: 01 December 2005
• Docket Number: No. 03CA1820.
• Citation: 140 P.3d 131
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David Warren VEREN, Defendant-Appellant.
• Court: Colorado Court of Appeals

140 P.3d 131

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David Warren VEREN, Defendant-Appellant.

No. 03CA1820.

Colorado Court of Appeals, Div. II.

December 1, 2005.

Rehearing Denied February 2, 2006.

Certiorari Denied July 17, 2006.^*

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John W. Suthers, Attorney General, Cheryl Hone, Assistant Attorney General, Amy E. Richards, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Kathy Goudy, Carbondale, Colorado, for Defendant-Appellant.

LOEB, J.

Defendant, David Warren Veren, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession of a methamphetamine precursor, possession of manufacturing chemicals or supplies for a schedule II controlled substance, and driving under restraint. We affirm in part, reverse in part, and remand for a new trial.

A clerk at a convenience store contacted Officer Campbell of the Woodland Park Police Department to report that a person driving a blue pickup truck with no tailgate had, on several occasions, purchased large quantities of pseudoephedrine (Sudafed). The clerk observed the customer throwing empty boxes, stripped of their pills, into the trash outside the store. Officer Campbell asked the clerk to call him when the customer returned, which the clerk did, noting the license plate number of the truck. Officer Campbell looked up the motor vehicle record of the registered owner, defendant, and discovered that his license was revoked. The officer then shared this information with other officers, describing the vehicle as a blue pickup truck with no tailgate and its driver as a tall, thin white male with blond hair.

Some weeks later, Officer Turowski, who was fueling his car at the convenience store, saw a truck and driver matching the description given by Officer Campbell pulling out of the store's parking lot. He saw the truck turn the corner without using its turn signal and radioed Officers Campbell and Goings. Officer Goings saw the truck turn into another store's parking lot and the driver go into the store.

Officer Campbell arrived at the scene and parked so as to block the exit for defendant's truck. Officer Turowski arrived shortly afterward. Officer Goings motioned defendant to come out of the store, which he did. Goings asked to see defendant's driver's license, and defendant was able to produce only a Colorado identification card. Defendant stated to Officer Goings that his license had expired. Officer Goings ran a check on the status of defendant's license, confirmed that it had been revoked, and arrested him for driving while his license was under restraint.

The officers then searched the truck and found over 500 unopened pseudoephedrine tablets, three bottles of Heet gas line antifreeze, and five cans of Prestone automotive starting fluid. A number of the sealed boxes of pills were unusually full, with extra strips of pills consolidated into them. There was also a glue stick in the truck.

Defendant was charged with possession of pseudoephedrine with intent to use such product as a precursor in the manufacture of a controlled substance (methamphetamine), in violation of § 18-18-412.5, C.R.S.2005; possession of chemicals or supplies with intent to manufacture a schedule II controlled substance, in violation of § 18-18-405(1)(a), C.R.S.2005; and driving under restraint, in violation of § 42-2-138(1)(a), C.R.S.2005.

The jury found defendant guilty on all charges, and he was sentenced to concurrent ten-year prison sentences for the drug offenses and six months in jail for driving under restraint. This appeal followed.

I.

Defendant contends the trial court erred by denying his motion to suppress the stop by the officers, his initial statements made thereafter, and evidence from the subsequent search of his truck. We disagree.

In reviewing a trial court's denial of a motion to suppress, we defer to the court's findings of fact and reverse only where the court's conclusions are unsupported by its evidentiary findings or where it applied an erroneous legal standard. People v. Ray, 109 P.3d 996, 999 (Colo.App.2004). We review the trial court's legal conclusions de novo. People v. Schall, 59 P.3d 848, 851 (Colo.2002).

The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution protect against unreasonable searches and seizures. The determination of whether a search or seizure is reasonable depends on the reason for and the extent of the intrusion. People v. Archuleta, 980 P.2d 509, 512 (Colo.1999); see Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968).

Encounters between the police and citizens can be classified into three categories: consensual encounters, investigatory stops, and arrests. Outlaw v. People, 17 P.3d 150, 154 (Colo.2001). Investigatory stops and arrests are both seizures that implicate Fourth Amendment protections. People v. Jackson, 39 P.3d 1174, 1179 (Colo. 2002).

For an investigatory stop to comply with the Fourth Amendment, three conditions must be satisfied: (1) there is a specific and articulable basis in fact for suspecting that criminal activity has taken place, is in progress, or is about to occur (that is, "reasonable suspicion"); (2) the purpose of the intrusion is reasonable; and (3) the scope and character of the intrusion are reasonably related to its purpose. People v. Archuleta, supra. The court must examine the totality of the circumstances known to the police officers at the time of the stop. People v. Salazar, 964 P.2d 502, 505 (Colo.1998). An investigatory stop can be based on less than probable cause. Terry v. Ohio, supra; People v. Archuleta, supra.

For an arrest to be valid, it must be supported by probable cause. People v. Dickinson, 928 P.2d 1309, 1312 (Colo.1996); People v. Washington, 865 P.2d 145, 147 (Colo.1994). Probable cause to arrest exists when facts and circumstances within the arresting officer's knowledge are sufficient to support a reasonable belief that a crime has been or is being committed by the person arrested. People v. Dickinson, supra. The prosecution bears the burden of proof to establish probable cause to support a warrantless arrest. People v. Washington, supra.

Here, defendant filed a motion to suppress the stop for lack of probable cause and to suppress any statements and evidence that were the fruit of that stop. On appeal, defendant argues that there was neither probable cause nor reasonable suspicion for the stop. We disagree.

At the suppression hearing, Officer Goings testified he had been contacted by Officer Campbell earlier in the week, and was given information that a blond white male, who owned a blue Ford pickup truck with no tailgate, had a driver's license that had been revoked. Goings had also been given the license plate number of the vehicle. Goings further testified that, on the day in question, he was contacted by Officer Turowski, who had seen the vehicle turn left without signaling. Officer Goings followed the vehicle to the store, checked over the dispatch radio to see whether the license plate number matched, and waited for the man to get out of the truck and move into better lighting so he could match his physical description. Officer Goings then motioned defendant out of the convenience store and asked to see his driver's license.

The trial court found that, based on his observation and the information provided to him, Officer Goings had a reasonable suspicion to stop defendant and ask to see his driver's license. The court thus found that defendant's initial statement to Officer Goings that his driver's license had expired was admissible. We conclude that the trial court's findings are supported by the record and that it applied the correct legal standard in determining that Officer Goings conducted a valid investigatory stop.

The record also shows that Officer Goings ran a check on defendant's driver's license and criminal record and found that the license had been revoked. Thus, we conclude the trial court correctly found that there was probable cause to arrest defendant for driving under restraint.

Defendant also argues that evidence from the search of his vehicle should have been suppressed. We disagree because we conclude the search of defendant's vehicle was incident to a lawful arrest. See People v. Salazar, supra, 964 P.2d at 507.

When a police officer has made a lawful custodial arrest of the occupant of an automobile, the officer may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981); People v. Kirk, 103 P.3d 918, 922 (Colo.2005). Such a search may include the passenger compartment and any open or closed containers. New York v. Belton, supra; People v. Kirk, supra. The authority to search the passenger compartment incident to a lawful arrest is automatic and does not depend on the specific facts of each case. People v. H.J., 931 P.2d 1177, 1183 (Colo.1997). This standard governs even when an officer does not make contact until the person arrested has left the vehicle. Thornton v. United States, 541 U.S. 615, 617, 124 S.Ct. 2127, 2129, 158 L.Ed.2d 905 (2004); People v. Kirk, supra. Such a search is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment. Thornton v. United States, supra, 541 U.S. at 623, 124 S.Ct. at 2132; People v. Kirk, supra.

Here, the search of defendant's vehicle was incident to his lawful arrest based upon probable cause, and all the evidence seized was in the passenger compartment of the pickup truck. Accordingly, the trial court did not err in denying defendant's motion to suppress.

II.

Defendant contends the trial court abused its discretion and committed reversible error by admitting the lay opinion testimony of Officers Turowski...