People v. Verigan

• Decision Date: 24 September 2015
• Docket Number: Court of Appeals No. 12CA2069
• Citation: People v. Verigan, 488 P.3d 75 (Colo. App. 2015)
• Court: Colorado Court of Appeals
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Kimberlie Deann VERIGAN, Defendant–Appellant.

488 P.3d 75

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

v.Kimberlie Deann VERIGAN, Defendant–Appellant.

Court of Appeals No. 12CA2069

Colorado Court of Appeals, Division VI.

Announced September 24, 2015

Cynthia H. Coffman, Attorney General, Jillian J. Price, 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 ASHBY

¶ 1 Defendant, Kimberlie Deann Verigan, appeals from the trial court's judgment entered on jury verdicts finding her guilty of possession of two grams or less of a controlled substance (methamphetamine) and possession of drug paraphernalia. Her appeal requires us to decide whether the Supreme Court's various opinions in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), produced a precedential rule that binds lower courts. Because we conclude that it does not, we apply the Supreme Court's pre– Seibert cases to the facts of this case and affirm Verigan's convictions.

I. Background

¶ 2 Early one morning, Officers Brewer and Mitchell saw a car roll through a stop sign and pulled it over. Almost immediately upon stopping, the driver got out of the car and approached the officers. Because he approached in a "semi-aggressive" manner, the officers placed him in the backseat of the police cruiser. Officer Mitchell then approached the car and contacted Verigan, who had been seated in the passenger side of the car. Another passenger who was in the backseat was allowed to leave.

¶ 3 Officer Mitchell determined that Verigan owned the car, and asked her to provide her registration and proof of insurance. While Verigan was getting those items, Officer Mitchell saw a used marijuana pipe containing a "black, burned substance" in the driver's side door and an unlabeled pill bottle containing white pills on the driver's side floorboard. He then asked Officer Brewer to search Verigan's car while he led Verigan a short distance away.

¶ 4 Officer Brewer searched the passenger compartment of the car. In the front passenger seat, he found a backpack containing a camera case. Inside the camera case was a lighter, cut straws, two methamphetamine pipes, and two small baggies of what was later identified as methamphetamine. Officer Brewer told Officer Mitchell what he had found. Officer Mitchell then brought Verigan over to the car where the officers asked her about the backpack, the drugs, and the drug paraphernalia they had found in the car.

¶ 5 Officer Mitchell asked Verigan who owned the backpack. Verigan replied that the backpack belonged to basically everybody who had been in the car, but it was mainly used by her. He also asked her if she possessed any illegal items, and she said she had a box cutter. Officer Mitchell then lead Verigan to the back of her vehicle, asked her to turn around and face the car, and instructed her to put her hands behind her back while he conducted a pat-down search.

¶ 6 During the pat-down, Officer Mitchell felt other objects in Verigan's pocket. Verigan told Officer Mitchell that, due to a recent injury, it would cause her physical pain to be searched more thoroughly. Officer Mitchell told Verigan that a female officer would come to conduct a thorough search, but that it would be in her best interest to hand over anything illegal she might have. Verigan produced a small baggy of methamphetamine from her pocket and was then arrested. At no point before her arrest did the officers place Verigan in handcuffs or give her a Miranda advisement pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

¶ 7 Once at the police station, Officer Brewer gave Verigan a Miranda advisement, and after she waived her Miranda rights, interrogated her. He asked about the methamphetamine in the backpack, the duration of Verigan's methamphetamine use, whether the methamphetamine from her pocket belonged to her, and what the brown substance found in the camera case was. Verigan's answers were consistent with those she had given at the scene of the traffic stop: the backpack belonged to everybody who had been in the car, the baggy from her pocket was hers, and the brown substance from inside the camera case was methamphetamine residue from previous use.

¶ 8 Before trial, Verigan moved to suppress the evidence found during the search of her vehicle, the statements she made at the scene of the traffic stop before receiving a Miranda advisement, and the statements she made at the police station after receiving a Miranda advisement and waiving her Miranda rights. After a hearing, the trial court denied Verigan's motions. It found that the search was supported by probable cause and that, because Verigan was not "under arrest" during the interrogation by Officer Mitchell, no Miranda advisement was required.

¶ 9 At trial, the court admitted the physical evidence found during the search of the car as well as the baggy of methamphetamine from Verigan's pocket. It also admitted Verigan's statements to Officer Mitchell, including that the backpack in the car mostly belonged to her; that the methamphetamine in the backpack did not belong to the driver; her conflicting statements that someone else either gave her the methamphetamine in her pocket, that she picked it up somewhere, or that it was hers; and statements to Officer Brewer that she was a methamphetamine user.

¶ 10 Verigan was convicted of one count of possession of methamphetamine and one count of possession of drug paraphernalia. She appeals.

II. Probable Cause for Search of the Car

¶ 11 Verigan argues that the evidence obtained from the search of her vehicle should have been suppressed because Officer Mitchell's observation of a used marijuana pipe and an unlabeled pill bottle, without more, did not give the officers probable cause to search the vehicle. We disagree.

¶ 12 Whether the trial court erred by admitting the evidence obtained from the search presents a mixed question of fact and law. See People v. Bonilla–Barraza, 209 P.3d 1090, 1094 (Colo.2009). We defer to the trial court's factual findings if there is competent evidence in the record to support them, but we review the court's legal conclusions de novo. Id .

¶ 13 The United States and Colorado Constitutions protect citizens from unreasonable searches and seizures. U.S. Const. amend. IV ; Colo. Const. art. II, § 7. Unless a specific exception applies, warrantless searches are presumptively unreasonable. See People v. Moore, 900 P.2d 66, 70 (Colo.1995). One recognized exception is the automobile exception, which permits the "warrantless search of an automobile if [the police] have probable cause to believe that the automobile contains evidence of a crime." Id. Probable cause in this situation means a reasonable belief. Id. This standard, as relevant here, requires only that an observed object would cause a reasonable person to believe "that certain items may be contraband ... or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false." Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). Whether probable cause exists depends on the totality of the circumstances. See People v. Miller, 75 P.3d 1108, 1113 (Colo.2003).

¶ 14 If there is a reasonable belief that a car contains evidence of a crime, and therefore probable cause, police may search "every part of the vehicle and its contents that may conceal the object of the search." United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

¶ 15 Here, prior to the search, the officers lawfully observed a marijuana pipe filled with "a black, burned substance." We agree with Verigan that an officer's observation of an unused marijuana pipe, still in its original packaging, in a car, cannot alone lead to a reasonable belief that the car contains illegal drugs. See People v. McCarty, 229 P.3d 1041, 1046 (Colo.2010). However, an officer's observation of a used marijuana pipe containing a burned substance that the officer could reasonably infer to be marijuana does support a reasonable belief that the vehicle may contain additional illegal drugs or contraband. See People v. Daverin, 967 P.2d 629, 633 (Colo.1998) (officers' discovery of a marijuana pipe loaded with a small amount of what appeared to be marijuana during lawful search of pickup truck's passenger compartment provided officers with probable cause to expand that search for additional marijuana to the bed of the truck). Accordingly, the officers' observation of a pipe that they recognized as the type commonly used to smoke marijuana, filled with a "black, burned substance," provided them with a reasonable belief that the car may have contained marijuana, an illegal drug at the time of the search in 2011.¹

¶ 16 Therefore, we conclude that there was probable cause for the search of Verigan's car, and that the trial court properly denied Verigan's motion to suppress the evidence discovered during that search.

III. Suppression of Statements

¶ 17 Verigan next argues that the trial court erred by denying her motion to suppress the statements she made to police at the scene and later at the station. She contends that her statements at the scene were inadmissible under Miranda because the officers subjected her to custodial interrogation without advising her of her rights. She also argues that the statements she made at the station after a Miranda advisement and waiver were inadmissible because they were "tainted" by her pre-advisement statements at the scene. We conclude that the court erred by failing to suppress the pre-advisement statements, but properly admitted the post-advisement statements. We further conclude that the error of admitting the pre-advisement statements was harmless beyond a reasonable doubt.

A. Fifth Amendment Principles and Application to Verigan's...