COLORADO COURT OF APPEALS 2016COA150
Court of Appeals No. 14CA0959 Adams County District Court No. 13CR1295 Honorable John E. Popovich, Jr., Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Carl A. Brown,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE WEBB Hawthorne and Navarro, JJ., concur
Announced October 20, 2016
Cynthia H. Coffman, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Rachel K. Mercer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Does the Fourth Amendment allow police officers to impound
a car only because the driver and sole occupant was cited — but
not arrested — for driving on a suspended license? If the answer is
“no,” then is the ensuing inventory search unlawful? These are
novel questions in Colorado.
¶2 A jury convicted Carl A. Brown of possession of a controlled
substance (over two grams) and possession of a controlled
substance with intent to distribute. The trial court sentenced him
to ten years in the custody of the Department of Corrections, plus
five years of mandatory parole.
¶3 On appeal, Mr. Brown raises contentions of an illegal
impoundment and inventory search during which the drugs were
discovered, an unlawful peremptory challenge under Batson,
improper expert testimony by police officers, prosecutorial
misconduct in closing argument, failure to merge the convictions,
and the trial court’s misunderstanding of its sentencing discretion.
Because we agree that the impoundment and inventory search of
1 Mr. Brown’s car violated the Fourth Amendment,1 we reverse and
remand for the trial court to grant his motion to suppress.2
I. Impoundment and Inventory Search
A. Background
¶4 Aurora police officers pulled Mr. Brown’s car over after he
failed to make a complete stop at a stop sign.3 During the traffic
stop, the officers learned that Mr. Brown was driving on a
suspended license. Based on this violation, they chose to issue Mr.
Brown a summons, but not to arrest him. Still, the officers decided
to impound his car. While waiting for the tow truck, one of them
performed an inventory search and found the drugs. Only then did
they arrest Mr. Brown.
B. Preservation
¶5 The Attorney General asserts that Mr. Brown failed to preserve
his contention that impoundment of his car was not
1 Mr. Brown does not make a separate argument based on the counterpart provision of the Colorado Constitution. See Colo. Const. art. II, § 7. 2 Given this conclusion and because Mr. Brown’s remaining
contentions are unlikely to arise on retrial, we need not address them. 3 Mr. Brown does not contest the validity of the traffic stop.
2 constitutionally reasonable, given an exception — discussed more
fully below — to the warrant requirement that allows impoundment
without a warrant under some circumstances. This assertion
misses the mark for two reasons.
¶6 First, during the suppression hearing, defense counsel argued:
[The officers] were going to issue a summons and release him. You get to at that point whether or not they had a right to search his car, inventory search his car. And the officer had the discretion, pursuant to their manual, to leave the car on the scene if they can verify the ownership, which they admitted on the stand it was, in fact, Mr. Brown’s car. It had valid insurance, registration and plates. At that point the stop should have been over. No further contact should have been conducted.
....
This is an attempt to, in essence, create their own reason to inventory search this car in order to verify an anonymous tip that they were unable to verify earlier.
¶7 Second, after the prosecutor defended the impoundment, the
trial court ruled against Mr. Brown on the issue. See People v.
Syrie, 101 P.3d 219, 223 n.7 (Colo. 2004) (An issue is preserved if
“the trial court [has an] adequate opportunity to make factual
findings and legal conclusions.”).
3 C. Standard of Review
¶8 A trial court’s ruling on a motion to suppress presents a mixed
question of fact and law. People v. Martinez, 165 P.3d 907, 909
(Colo. App. 2007). We defer to the trial court’s findings of fact if
they are supported by competent evidence in the record, but we
review its conclusions of law de novo. Id. Of course, “[w]e review de
novo the trial court’s ultimate legal conclusion of whether a seizure
violated constitutional prohibitions against unreasonable searches
and seizures.” People v. Funez-Paiagua, 2012 CO 37, ¶ 6.
D. Law
1. Inventory Searches
¶9 The Fourth Amendment to the United States Constitution
prohibits unreasonable searches and seizures. And under the
Fourth Amendment, searches conducted without a warrant are
presumptively unreasonable, unless the search comes within an
exception to the warrant requirement. People v. Vaughn, 2014 CO
71, ¶ 14. The prosecution bears the burden of overcoming this
presumption by establishing one of these exceptions. People v.
Winpigler, 8 P.3d 439, 443 (Colo. 1999).
4 ¶ 10 This case concerns the exception that “permits officers to
conduct an inventory search of a vehicle without a warrant based
on probable cause when that vehicle is lawfully impounded by law
enforcement officials.” Vaughn, ¶ 14; see Colorado v. Bertine, 479
U.S. 367, 371-72 (1987) (Because inventory searches further police
caretaking procedures, “[t]he policies behind the warrant
requirement are not implicated in an inventory search, nor is the
related concept of probable cause.”) (citation omitted). This
exception exists because an inventory search does not seek to
obtain evidence but is “designed to protect the owner’s property
while it is in police custody, to insure against claims concerning lost
or damaged property, and to protect the police from any danger
posed by the contents of the vehicle.” Pineda v. People, 230 P.3d
1181, 1185 (Colo. 2010), disapproved of on other grounds by
Vaughn, ¶ 11 n.7.
¶ 11 Still, the decision to impound a vehicle and the ensuing
inventory search are separate processes, both of which “must meet
the strictures of the Fourth Amendment.” United States v. Duguay,
93 F.3d 346, 351 (7th Cir. 1996); accord King v. Commonwealth,
572 S.E.2d 518, 520 (Va. Ct. App. 2002) (“The validity of the
5 impoundment is a question separate from the validity of the
subsequent inventory search and must be determined first.”).
Thus, because the act of impoundment “‘gives rise to the need for
and justification of the inventory [search],’ the threshold inquiry
when determining the reasonableness of an inventory search is
whether the impoundment of the vehicle was proper.” State v.
Gauster, 752 N.W.2d 496, 502 (Minn. 2008) (alteration in original)
(quoting State v. Goodrich, 256 N.W.2d 506, 510 (Minn. 1977)).
¶ 12 Mr. Brown acknowledges — as he must — that “[a]fter validly
impounding a vehicle, an officer may make an inventory search of
its contents.” People v. Milligan, 77 P.3d 771, 776 (Colo. App. 2003)
(emphasis added). Instead, he asserts that because the prosecution
failed to prove the legality of the impoundment, a threshold Fourth
Amendment violation occurred, which fatally tainted the inventory
search.4 Examining this assertion requires us to take a closer look
at the law of impoundment.
4At oral argument, the Attorney General conceded that if the impoundment fails, it takes the inventory search down as well.
6 2. Lawful Impoundment
¶ 13 To begin, everyone would agree that “[t]he impoundment of an
automobile is a seizure within the meaning of the Fourth
Amendment.” Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th
Cir. 2005). Even so, an impoundment by the police without a
warrant satisfies the Fourth Amendment if it occurs in furtherance
of “public safety” or “community caretaking functions,” such as
removing “disabled or damaged vehicles” and “automobiles which
violate parking ordinances and which thereby jeopardize both the
public safety and the efficient movement of vehicular traffic.” South
Dakota v. Opperman, 428 U.S. 364, 368-69 (1976) (citation
omitted).5 Like the exception for inventory searches, this exception
to the warrant requirement recognizes that the purpose of the
impoundment is not to obtain evidence. In every inventory search
case, then, the dilemma between a seizure and the lack of a warrant
5 Impoundment may also occur when it is authorized by a state statute. See, e.g., United States v. Gillon, 348 F.3d 755 (8th Cir. 2003) (impoundment lawful here where statute authorized impoundment incident to citation for operating vehicle without financial liability coverage); United States v. Rios, 88 F.3d 867 (10th Cir. 1996) (state statute authorizes impoundment of improperly registered vehicle). But the Attorney General does not cite to any such Colorado statute.
7 or other permissive court order must be resolved by determining
whether “the state [has] an interest in impoundment that outweighs
the individual’s Fourth Amendment right to be free of unreasonable
searches and seizures.” Gauster, 752 N.W.2d at 502.
¶ 14 As part of the legal framework for this determination, when
departmental regulations give police the discretion to impound a
vehicle, often “decisions to impound will be upheld as long as that
discretion has been exercised according to standard criteria.”
Milligan, 77 P.3d at 776; see Bertine, 479 U.S. at 374 (“[R]easonable
police regulations relating to inventory procedures administered in
good faith satisfy the Fourth Amendment, even though courts might
as a matter of hindsight be able to devise equally reasonable rules
requiring a different procedure.”). But not always.
¶ 15 “[T]he fact that officers may have conducted an inventory
search in accordance with procedures does not, of itself, necessarily
mean that the inventory search was reasonable.” People v. Gee, 33
P.3d 1252, 1254 (Colo. App. 2001); accord People v. Hicks, 197
Colo. 168, 171, 590 P.2d 967, 969 (1979) (“The words ‘routine
inventory search’ are not a ‘talisman in whose presence the Fourth
Amendment fades away.’” (quoting Coolidge v. New Hampshire, 403
8 U.S. 443, 461 (1971))), overruled by People v. Bannister, 619 P.2d
71 (Colo. 1980); see also United States v. Sanders, 796 F.3d 1241,
1250 (10th Cir. 2015) (“Protection against unreasonable
impoundments, even those conducted pursuant to a standardized
policy, is part and parcel of the Fourth Amendment’s guarantee
against unreasonable searches and seizures.”). Thus, by any fair
account, a decision upholding an inventory search based on a
policy — but without asking whether the criteria for the underlying
impoundment satisfy the Fourth Amendment — is like the emperor
with no clothes.
E. Analysis
¶ 16 Although a written copy of the Aurora department policy is not
in the record, standard policies regulating inventory searches do
not need to be in writing. Gee, 33 P.3d at 1256-57. Rather,
“unwritten policies of a police department that are routinely used by
officers in conducting inventory searches are standards that may be
considered in determining the reasonableness of an inventory
search.” Id.
¶ 17 At the suppression hearing, the officer who ordered the
impoundment testified that when Mr. Brown was pulled over, his
9 car was “off the roadway” and not blocking traffic. Still, the officer
said that the car was impounded because “[Mr. Brown’s] license
was suspended.” He added that “[Mr. Brown] was detained . . .
[and] [h]e would have been issued a summons and released there
and the vehicle impounded.”
¶ 18 As to the policy, the officer explained that “[p]art of our
department policy is we impound vehicles with a suspended
license” — “Our routine procedure is that if they don’t have a valid
driver’s license, the vehicle is impounded.” The officer also testified
that the decision to impound is “up to the officer’s discretion.”
¶ 19 For the prosecutor, so far, so good. But then the following
cross-examination occurred:
Q: . . . You have the discretion, correct?
A: Yes.
Q: And part of the circumstances around that are whether the car is blocking traffic, impeding traffic?
Q: Whether the person is the owner of the car?
10 Q: Did you give Mr. Brown the option . . . of whether he wished his car to remain on scene or to be towed?
A: No.
Q: Why not?6
A: He already demonstrated that he is going to drive his vehicle on a suspended license.
¶ 20 True enough, as the trial court found, the department’s policy
gave the officer discretion to impound Mr. Brown’s car because his
license was suspended. But removing the potential for abuse of
unbridled discretion moves the Fourth Amendment analysis
forward only half way. More analysis is required because “strict
adherence to standard police department procedures . . . does not
necessarily satisfy the Fourth Amendment reasonableness
standard.” People v. Hauseman, 900 P.2d 74, 78 (Colo. 1995),
disapproved of on other grounds by Vaughn, ¶ 11 n.7; see Miranda,
429 F.3d at 864 (“We begin with the premise . . . that the decision
to impound pursuant to the authority of a city ordinance and state
6 For those who read this opinion without the benefit of significant trial experience, one of the time-honored rules of cross-examining a witness is “never ask why.”
11 statute does not, in and of itself, determine the reasonableness of
the seizure under the Fourth Amendment . . . .”).
¶ 21 And herein lies the problem: the prosecutor failed to prove that
apart from Mr. Brown driving on a suspended license, any other
fact made the impoundment reasonable. For example, the
prosecutor did not even ask the officer whether Mr. Brown lacked
proof of insurance or had produced proper registration. And in
response to defense counsel’s question, the police officer testified, “I
don’t recall who the vehicle was registered to.” Nor did the
prosecution present any evidence that the location of the car
imperiled other drivers, a criterion under the policy.
¶ 22 Consistent with the prosecutor’s narrow position, the trial
court found only that Mr. Brown’s license was suspended and the
officer had relied on the policy, neither of which was disputed. Yet,
the following evidence — also undisputed — weighs against the
impoundment having been reasonable, on three levels.
¶ 23 First, consider the officer’s testimony that he had planned to
release Mr. Brown after issuing him a summons for driving on a
suspended license, not to arrest him. See People v. Grenier, 200
P.3d 1062, 1070 (Colo. App. 2008) (Impoundment was reasonable
12 where “at the time defendant was taken into custody, there was no
one else available to take the car . . . [and] the car could not be left
unattended because, considering the area of town, the car would
likely not be there when defendant returned.”); see also Milligan, 77
P.3d at 777 (An officer’s impoundment decision was upheld where
“a vehicle was driven illegally and the driver has been arrested” and
“the practice is to impound the vehicle, unless a passenger has a
valid driver’s license and is then allowed to drive the car away.”);
Gee, 33 P.3d at 1255 (There was no Fourth Amendment violation
where a “policy permitted an officer to have a vehicle towed when a
driver was arrested for driving under the influence . . . [and] the
officer, in deciding to tow the vehicle, considered the remote
location of the vehicle, the possibility of vandalism, the fact that the
vehicle was from out of state, and the ‘rationality of the
defendant.’”).
¶ 24 Unlike such cases where the driver was arrested, because Mr.
Brown could have remained to safeguard his car, the police
13 caretaking function would not have been implicated.7 For this
reason, “cases in which the driver of a vehicle is arrested are
fundamentally different from cases in which the driver remains
free.” State v. Rohde, 852 N.W.2d 260, 266 (Minn. 2014). As the
court explained in Gauster, 752 N.W.2d at 506, “[w]hile the need for
the police to protect the vehicle and its contents is often present
when police officers arrest a driver,” a driver who is not arrested
“never relinquishe[s] control of his vehicle and ha[s] no need to
leave it unattended.” Cf. People v. Litchfield, 918 P.2d 1099, 1105
(Colo. 1996) (“Because [defendants] would have maintained control
over the car and their belongings within it while the officers checked
with the rental company, there was no need for the officers to
inventory the contents of the car.”). Stated in the simplest terms,
7 The Attorney General relies extensively on People v. Vaughn, 2014 CO 71, where the supreme court found an inventory search to be valid where the defendant’s vehicle had been lawfully impounded. Although this case also involved impoundment based on a suspended license, because the driver was arrested, it is inapposite. Similarly, United States v. Sanders, 796 F.3d 1241, 1250 (10th Cir. 2015), on which the Attorney General relied at oral argument, involved the impoundment of a vehicle parked on private property, after the driver had been arrested. And in any event, the Court of Appeals held the impoundment unlawful under the Fourth Amendment.
14 “[t]he state owes no legal duty to protect things outside its custody
from private injury.” Duguay, 93 F.3d at 353. Without this
justification the impoundment may still stand, but its legal
foundation is weakened.
¶ 25 Second, consider that Mr. Brown’s inability to lawfully drive
the car does not alone make the impoundment reasonable. See
Taylor v. State, 842 N.E.2d 327, 333 (Ind. 2006) (“The fact that
[defendant] was unable to drive his car because his permit was
suspended does not in this instance support a conclusion that the
car itself was imperiled or constituted a potential hazard which [the
police officer] reasonably believed he needed to address.”); see also
3 Wayne R. LaFave, Search and Seizure § 7.3(c) (5th ed. 2012)
(When a “driver is only ticketed but cannot himself operate the car
because of an expired license, impoundment of the vehicle is
improper unless the driver is ‘unable to provide for its custody or
removal.’”) (citations omitted).
¶ 26 Jerking Mr. Brown’s inability lawfully to drive out from under
the already shaky impoundment is appropriate because the
prosecutor also did not present any evidence of generally accepted
reasons to impound, such as that the car was in an unsafe location
15 or impeding traffic. See Miranda, 429 F.3d at 866 (“An officer
cannot reasonably order an impoundment in situations where the
location of the vehicle does not create any need for the police to
protect the vehicle or to avoid a hazard to other drivers.”); see also
Thompson v. State, 966 S.W.2d 901, 905 (Ark. 1998) (“[I]t is
permissible for an officer to impound and inventory a vehicle when
the driver is physically unable to drive the car, and leaving it on the
side of the road would create a safety hazard.”) (emphasis added);
cf. People v. Trusty, 183 Colo. 291, 295, 516 P.2d 423, 425 (1973)
(An inventory search was reasonable where the vehicle “was parked
in a high-risk area, the parking lot of a tavern; it had out-of-state
license plates; the whereabouts of its owner were unknown; and
[defendant], who was intoxicated and subsequently placed under
arrest, had voluntarily turned over the keys to the auto to the
officer and invited a search of the vehicle.”).
¶ 27 Third, consider that the suppression hearing record is barren
of any reason why Mr. Brown could not have called someone else to
lawfully drive his car or summoned a tow truck himself, options
16 that the officers did not extend to him.8 After all, because the police
did not plan on arresting him, he would have needed to arrange for
his own transportation. Those arrangements could have been as a
passenger in his car, being driven by someone else, or sitting in the
cab of a tow truck that he had summoned. Compare King, 572
S.E.2d at 521 (“[T]he owner of the vehicle[] was not taken into
custody or removed from the scene and, although he could not
personally drive the vehicle, the evidence failed to show he was
unable to arrange for its removal to another location, or to
safeguard his property.”), with Commonwealth v. Daley, 672 N.E.2d
101, 103 (Mass. 1996) (Impoundment of an unregistered and
uninsured vehicle was reasonable because “the officers could not
permit the continued operation of this illegal vehicle on the public
roadways, nor could they leave the vehicle unattended on the
8 We recognize that in Colorado v. Bertine, 479 U.S. 367, 373 (1987), the Supreme Court rejected the argument that the police are required to give an arrested driver “an opportunity to make alternative arrangements” before impounding his or her vehicle. But again, that case involved impoundment after an arrest. See State v. Rohde, 852 N.W.2d 260, 266 (Minn. 2014) (distinguishing Bertine because “when the driver is not arrested, it is ‘not necessary for the police to take [the] vehicle into custody in the first place’”) (alteration in original) (citation omitted).
17 shoulder of a busy main road.”). This lack of evidence leaves the
impoundment teetering.
¶ 28 Given all this, one might well ask whether the impoundment
can be saved from toppling under its own weight by the police
officer’s testimony that Mr. Brown had “already demonstrated that
he is going to drive his vehicle on a suspended license.” At first
blush, impounding a vehicle to prevent a driver with a suspended
license from operating it would further public safety.
¶ 29 But the prosecutor did not rely on this testimony below, and
on appeal, the Attorney General does not do so either. See Syrie,
101 P.3d at 223 (Where the “prosecut[ion] chose not to argue that
the search . . . was incident to lawful arrest” at the suppression
hearing, it “surrender[ed]” that argument and “conceded th[e]
issue.”); see also Moody v. People, 159 P.3d 611, 614 (Colo. 2007)
(“Our starting point is the basic principle of appellate jurisprudence
that arguments not advanced on appeal are generally deemed
waived.”).
¶ 30 Nor did the trial court find that the officers had impounded the
car because otherwise Mr. Brown would have driven off, after they
left. And from the officer’s conclusory statement, we do not know
18 whether Mr. Brown told the officers that he would drive off as soon
as they left or if they only inferred that he would do so. See Moody,
159 P.3d at 616 (Noting “the hazards encountered by the court of
appeals in navigating sua sponte review: it placed itself in the
tenuous position of resolving fundamental facts that had not been
identified during the suppression hearing.”).
¶ 31 True enough, an appellate court “can affirm for any reason
supported by the record, even reasons not decided by the trial
court.” Roque v. Allstate Ins. Co., 2012 COA 10, ¶ 7. But applying
this principle sua sponte runs counter to the teaching of Moody.
And in any event, without further explanation, this testimony does
not provide sufficient support for impounding Mr. Brown’s car. See
Miranda, 429 F.3d at 866 (rejecting argument that “impoundment
satisfied the ‘caretaking’ function by deterring [defendants] from
repeating this illegal activity in the future”).
¶ 32 In the end, we agree with the well-reasoned cases holding that
even where a department policy allows officers to impound a
vehicle, the decision to impound must still satisfy the requirements
of the Fourth Amendment. Because the prosecution did not meet
its burden to show that impounding Mr. Brown’s car was
19 reasonable, the inventory search was unlawful. And because the
search was unlawful, any evidence found should have been
suppressed. See People v. Prescott, 205 P.3d 416, 422 (Colo. App.
2008) (“[E]vidence obtained by the police through unlawful means
. . . is inadmissible and must be suppressed.”).9
II. Conclusion
¶ 33 The judgment is reversed and the case is remanded for the
trial court to grant the motion to suppress and for proceedings
consistent with this opinion.
JUDGE HAWTHORNE and JUDGE NAVARRO concur.
9 We recognize that the exclusionary rule is “applicable only where its remedial objectives are thought most efficaciously served — that is, where its deterrence benefits outweigh its substantial social costs.” Hudson v. Michigan, 547 U.S. 586, 591 (2006) (citation omitted). However, because the Attorney General did not argue against suppression on this basis, we decline to do so sua sponte.