U.S. v. Hopp, 96-1532M.

• Decision Date: 28 October 1996
• Docket Number: No. 96-1532M.,96-1532M.
• Citation: 943 F.Supp. 1313
• Parties: UNITED STATES of America, Plaintiff, v. Choarron HOPP, Defendant.
• Court: U.S. District Court — District of Colorado

943 F.Supp. 1313

UNITED STATES of America, Plaintiff, v. Choarron HOPP, Defendant.

No. 96-1532M.

United States District Court, D. Colorado.

October 28, 1996.

Griffith Kundahl, Assistant Federal Public Defender, Denver, CO, for Hopp.

Stephen G. Salerno, Special Assistant U.S. Attorney, Office of the Staff Judge Advocate, Aurora, CO, for U.S.

MEMORANDUM OPINION AND ORDER

BORCHERS, United States Magistrate Judge.

THIS MATTER came before the Court for trial on October 11, 1996. Present were the following: Steven Salerno, Special Assistant United States Attorney; Griffith Kundahl, attorney for Defendant; and Defendant. The Court heard the testimony of Officers Tom Rogers and Michael Kehoe, as well as the argument of counsel. The Court then took the case under advisement.

I.

The facts of what occurred in this case are not disputed. On April 28, 1996 shortly after Midnight, Department of Defense Police Officer Tom Rogers was operating a laser speed device at the United States Army Garrison Fitzsimons (Fitzsimons). He observed a vehicle travelling westbound at what appeared to be an excessive rate of speed. He clocked the vehicle and found that it was exceeding the posted speed limit.

Officer Rogers observed the vehicle as it stopped in front of what used to be the main hospital building. The vehicle then proceeded west. Officer Rogers activated his emergency equipment and the vehicle pulled into a parking lot. Officer Rogers then contacted Defendant Chaorron Hopp. Defendant produced a driver's license after some delay but was initially unable to find her proof of insurance card. Officer Rogers noticed an odor of alcohol. Officer Rogers went back to his car and then returned. Officer Rogers asked Defendant to step out of her car. Defendant did so.

Officer Rogers then asked Defendant to perform a series of roadside tests commonly used to determine if a driver is under the influence of alcohol. Defendant said that she did not want to perform such maneuvers. Officer Rogers told Defendant that she had to perform such tests under the Colorado Express Consent Law. Defendant then talked with a second policeman who had appeared on the scene, Officer Michael Kehoe. Defendant asked Officer Kehoe if she was required to do roadside tests, and Officer Kehoe indicated that she was so required. Officer Kehoe did not notice a smell of alcohol when Defendant was talking with him at that time.

As a result of the information from the officers, Defendant performed the series of roadside tests. According to Officer Rogers, Defendant did not perform well on the tests and appeared to be under the influence of alcohol. Officer Rogers then arrested Defendant and transported her to the Office of the Provost Marshal. Officer Rogers asked Defendant if she would take a chemical test, and Defendant refused. Defendant was cited for driving under the influence and released.

The prosecution ultimately decided to file an information charging driving while ability impaired under Colo.Rev.Stat. § 42-4-1301(1)(b). Defendant entered a plea of not guilty, and the matter was set for trial. At the conclusion of all evidence, the Court took the matter under advisement.

II.

Defendant made a motion to suppress at the beginning of trial. This motion was premised upon Defendant's belief that she was improperly forced to submit to roadside sobriety tests and that the results of the tests should not be considered by the Court.¹

The evidence is unrefuted that Defendant was asked to step from her car. Defendant complied with that request. Defendant then was requested to perform roadside sobriety tests. Defendant refused. Officer Rogers advised Defendant that she was required to perform such tests under Colorado's Express Consent Law. Colo.Rev.Stat. § 42-4-1301(7). Defendant sought information from Officer Kehoe and was advised in the same fashion. Defendant then completed the roadside sobriety tests.

The prosecution in this case is pursuant to the Assimilative Crimes Act (ACA). 18 U.S.C. § 13. Even when a Colorado criminal statute is utilized under the ACA, this Court is not bound by decisions of the Colorado Supreme Court concerning that statute. Such decisions are informative and should be examined carefully. That is particularly true when few, if any, federal decisions may exist concerning traffic law enforcement.

The Colorado Supreme Court has been called upon to examine various issues concerning roadside sobriety tests. In People v. Helm, 633 P.2d 1071 (Colo.1981), the court held that Miranda warnings were not necessary before a police officer could request a motorist to take roadside sobriety tests. The court held further in that case that there was no evidence of coercion by the police officer.

In People v. Carlson, 677 P.2d 310 (Colo. 1984), the Colorado Supreme Court held that an officer could direct a driver to exit his vehicle. The observations made by a police officer of the driver's demeanor and walk to the rear of the vehicle did not constitute a search. The court held, in part, as to roadside sobriety tests as follows:

Roadside sobriety testing constitutes a full "search" in the constitutional sense of that term and therefore must be supported by probable cause. The sole purpose of roadside sobriety testing is to acquire evidence of criminal conduct on the part of the suspect ...

To satisfy constitutional guarantees against unlawful searches and seizures, therefore, a roadside sobriety test can be administered only when there is probable cause to arrest the driver for driving under the influence of, or while his ability is impaired by, intoxicating liquor or other chemical substance, or when the driver voluntarily consents to perform the test. The People do not contend, nor did the courts below find, that there was probable cause to arrest the defendant prior to the administration of the roadside testing. The only basis relied upon by the officer in administering the roadside tests was the defendant's alleged consent.

A voluntary consent to a search is a consent intelligently and freely given, without any duress, coercion or subtle promises or threats calculated to flaw the free and unconstrained nature of the decision (cit. omitted). Voluntariness is a question of fact to be determined from the totality of circumstances; and while the suspect's knowledge of a right to refuse testing is a factor to be taken into account, such knowledge is not a prerequisite to establishing the voluntary character of a consent search. (cit. omitted). In a consent search, the prosecution bears the burden of proving voluntariness by clear and convincing evidence. Appropriate factors to consider include age, education, and intelligence of the consenting person, the duration, location, and other circumstances of the search, the consenting person's state of mind, and any other factors that might have affected his free and unconstrained choice.

Id. at p. 317-18. The court held that the tests had been voluntarily completed by the defendant.

In McGuire v. People, 749 P.2d 960 (Colo. 1988), the Colorado Supreme Court was faced with the reverse issue of roadside tests. The defendant had refused to take any roadside sobriety tests. Evidence of the refusal was offered into evidence over the objection of the defendant. The court held that there was no constitutional right to be advised that a refusal to perform roadside sobriety tests could be offered into evidence at trial.

In the present case, there was...