The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY October 17, 2019
2019COA156
No. 17CA2134, People v. Harmon — Constitutional Law — Fourth Amendment — Searches and Seizures — Motor Vehicles
A division of the court of appeals concludes that Brendlin v.
California, 551 U.S. 249, 263 (2007), abrogated only the holding in
People v. Fines, 127 P.3d 79, 81 (Colo. 2006), that passengers in a
lawfully stopped vehicle are not seized for Fourth Amendment
purposes as a result of the traffic stop alone. The division also
concludes, however, that Brendlin did not further abrogate Fines.
Thus, it is still good law that there may be instances when an officer
effects a Fourth Amendment seizure beyond the initial traffic stop
by separating a passenger from the car and the car’s other
occupants and questioning the passenger about matters unrelated
to the traffic stop. COLORADO COURT OF APPEALS 2019COA156
Court of Appeals No. 17CA2134 Mesa County District Court No. 16CR6299 Honorable Valerie J. Robison, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Sarah Jean Harmon,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE BERGER Welling and Martinez*, JJ., concur
Announced October 17, 2019
Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2019. ¶1 Is a passenger in a vehicle that is lawfully stopped for a traffic
infraction seized within the meaning of the Fourth Amendment?
¶2 In People v. Fines, 127 P.3d 79, 81 (Colo. 2006), and People v.
Jackson, 39 P.3d 1174, 1185 (Colo. 2002), the Colorado Supreme
Court held that such a passenger is not seized when the vehicle is
lawfully stopped. But after these opinions were announced, the
United States Supreme Court reached a different conclusion. In
Brendlin v. California, 551 U.S. 249, 263 (2007), the Supreme Court
held that a passenger in a car is “seized from the moment [the] car
c[o]me[s] to a halt on the side of the road.”
¶3 The Colorado Supreme Court has recognized that Brendlin
overruled or abrogated the contrary Fourth Amendment holding in
Jackson but has not explicitly done the same with respect to Fines.
Tate v. People, 2012 CO 75, ¶ 8; People v. Marujo, 192 P.3d 1003,
1006 (Colo. 2008). We conclude that Brendlin also abrogated the
contrary holding in Fines, as Fines is expressly predicated on
Jackson. 1
1 Ordinarily, of course, we are bound by holdings of the Colorado Supreme Court and must follow those holdings unless and until they are overruled by that court. In re Estate of Ramstetter, 2016 COA 81, ¶ 40. But when, as here, the United States Supreme
1 ¶4 The continued viability of Fines matters in this case because
defendant, Sarah Jean Harmon, was a passenger in a vehicle that
was lawfully stopped by the police. Under the Supreme Court’s
holding in Brendlin, because the traffic stop was lawful, Harmon
was seized “from the moment [the] car came to a halt.” 551 U.S. at
263. Because it is uncontested that the stop was lawful under the
Fourth Amendment, there was no basis to suppress the fruits of the
seizure unless some other unconstitutional seizure was effected by
the police.2
¶5 Recognizing this problem, Harmon contends that when the
police directed her to a spot away from the car, separating her from
the driver and the other passenger, a separate Fourth Amendment
seizure occurred. She argues that because that seizure was
Court decides a question of federal constitutional law, that decision constitutes the supreme law of the land, and we must follow it notwithstanding contrary Colorado Supreme Court precedent. People v. Schaufele, 2014 CO 43, ¶ 33. 2 Harmon does not contend that article II, section 7 of the Colorado
Constitution affords her more protection than the Fourth Amendment to the United States Constitution. The two provisions are “generally co-extensive.” People v. Stock, 2017 CO 80, ¶ 14. We treat them as co-extensive here.
2 supported by neither probable cause nor reasonable suspicion, all
fruits of that seizure must be suppressed.
¶6 We reject Harmon’s argument not because it is legally
unsound under the facts she posits, but because those alleged facts
are not supported by the record. Because there was no separate
seizure, there was no basis to suppress the fruits of the seizure,
and the trial court correctly denied Harmon’s motion to suppress. 3
We also reject Harmon’s other claims of error and affirm the
judgment of conviction.
I. Background
¶7 While on patrol, a police officer drove past a vehicle with a
cracked windshield and a broken headlight. The officer followed the
car and saw that it also had an expired license plate. The officer
initiated a traffic stop, and the car stopped in or adjacent to an alley
3In a separate order, the trial court ruled that the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436 (1966), did not bar admission of Harmon’s statement that she had a “hot rail tube” in her purse or her explanation of what that term meant, namely, drug paraphernalia. In the same order, the trial court suppressed on Miranda and Fifth Amendment grounds a separate inculpatory statement made by Harmon after the search of her purse. Neither party appealed that order. Therefore, those rulings are not before us.
3 on the side of the roadway. During the stop, the officer recognized
Harmon, who was one of the passengers, from previous law
enforcement contacts involving illegal drugs. After collecting the
driver’s registration, license, and insurance information, the officer
began filling out a citation. The officer simultaneously called for a
canine unit to conduct a drug sniff of the exterior of the vehicle.
¶8 When the canine unit arrived, the officer directed the
occupants of the car to get out of the vehicle while the dog
performed the sniff. The passengers got out of the car and
remained nearby. According to the officer, he directed Harmon to a
spot five to ten feet behind the car. He stood with Harmon there,
while the driver and a second passenger stood some distance away
with the other officer.
¶9 The officer standing with Harmon “asked all [of the] occupants
if they had any guns, knives, drugs, [or] drug paraphernalia on
them.” Because the officer had known Harmon to have needles on
her person during their previous encounters, and in anticipation of
asking for consent to search her, he specifically asked Harmon
what was in her purse. She answered that she had a “hot rail
4 tube,” which she explained was an item used to snort
methamphetamine.
¶ 10 Meanwhile, the dog alerted to the odor of a controlled
substance in the vehicle, but a search of the vehicle turned up
nothing. The traffic officer then searched Harmon’s purse based on
her admission about the hot rail tube. Inside her purse, the officer
found the hot rail tube and a plastic container containing a Xanax
pill and methamphetamine.
¶ 11 Before trial, Harmon sought to suppress the evidence found in
her purse. She conceded that the traffic stop was lawful and that
the officer was entitled to order her to get out of the vehicle. She
asserted, however, that the patrol officer violated her constitutional
right to be free from unreasonable seizure when he “separated her”
from the other occupants of the car and asked her about the
contents of her purse. In particular, she argued that these actions
elevated the initial encounter to a “Terry stop” that was
unsupported by reasonable suspicion. 4
4“Under Terry, a police officer can briefly stop a suspicious person and make reasonable inquiries to confirm or dispel his suspicions.” People v. Corpany, 859 P.2d 865, 868 (Colo. 1993) (citing Terry v. Ohio, 392 U.S. 1, 30-31 (1968)). “The officer may also conduct a
5 ¶ 12 After a hearing, the trial court denied Harmon’s motion,
determining that (1) the traffic stop was not unreasonably
prolonged and (2) the search of Harmon’s purse was supported by
“specific and articulable facts.” The court did not specifically rule
on Harmon’s argument that her alleged separation from her
companions constituted a separate, unconstitutional seizure.
II. Discussion
¶ 13 On appeal, Harmon contends that the patrol officer violated
her right against unreasonable seizure “when, lacking any
reasonable suspicion, he secluded her in [an] alley and interrogated
her about drugs.” We disagree.
A. Preservation and Standard of Review
¶ 14 The Attorney General asserts that Harmon’s claim is
“unpreserved” because the trial court did not specifically address it
in denying her suppression motion. In contrast to the cases relied
on by the Attorney General, however, Harmon sought and received
a ruling on the matter she urged — namely, the suppression of
pat-down search of the individual to determine whether the person is carrying a weapon, as long as the officer is justified in believing that the person may be armed and presently dangerous.” Id. at 868-69.
6 evidence.5 People v. Boulden, 2016 COA 109, ¶ 5. That the trial
court did not analyze her motion in the way she presented it does
not mean that she failed to preserve the issue.
¶ 15 We review a trial court’s decision on a motion to suppress as a
mixed question of fact and law. People v. King, 16 P.3d 807, 812
(Colo. 2001). While we defer to the trial court’s findings of historical
fact when they are supported by competent evidence in the record,
we review conclusions of law de novo. Id.
B. Analysis
¶ 16 The Fourth Amendment to the United States Constitution and
article II, section 7 of the Colorado Constitution protect persons and
their homes from unreasonable searches and seizures. People v.
Mendoza-Balderama, 981 P.2d 150, 156 (Colo. 1999).
5 In Feldstein v. People, 159 Colo. 107, 111, 410 P.2d 188, 191 (1966), abrogated on other grounds by Deeds v. People, 747 P.2d 1266 (Colo. 1987), relied upon by the Attorney General, the court held that the defendant failed to preserve an issue where the court and counsel “completely forgot about [a] request concerning the transcription of oral arguments to the jury” and the court never ruled on the request. In People v. Zamora, 220 P.3d 996, 1001 (Colo. App. 2009), also relied on by the Attorney General, the division refrained from reaching the defendant’s appellate contentions because they were not raised in the trial court.
7 ¶ 17 A person is seized “when an officer, by means of physical force
or show of authority, terminates or restrains his [or her] freedom of
movement through means intentionally applied.” Tate, ¶ 7 (citing
Brendlin, 551 U.S. at 254). A traffic stop effectuates a seizure not
only of the driver, but also his passengers, for the duration of the
stop. Brendlin, 551 U.S. at 255, 257.
¶ 18 At a suppression hearing, a defendant has the burden of
presenting evidence of an unconstitutional seizure. People v.
Cunningham, 2013 CO 71, ¶ 14; Outlaw v. People, 17 P.3d 150, 155
(Colo. 2001). The defendant must show that (1) a Fourth
Amendment seizure occurred and (2) the seizure was
unconstitutional. Outlaw, 17 P.3d at 155.
¶ 19 Harmon concedes that, as a passenger in the vehicle, she was
lawfully seized by the traffic stop. Likewise, she does not dispute
that she could be ordered out of the car during the traffic stop.
Rather, she argues that her seizure became unconstitutional when
the police officer “brought her to an alley alone” to “interrogate her
about drugs.” That is, she asserts, the officer’s actions of
“abandoning the vehicle, the driver, and the other passengers to
8 move [her] to the alley for an interrogation based on a hunch she
might have drugs” effectuated a separate, unlawful seizure.
¶ 20 To support this contention, Harmon relies on Fines, 127 P.3d
79. In Fines, police recognized the defendant during a traffic stop
as “a drug user who had been in and out of jail.” Id. at 80. Police
asked her to step out of the car, “escorted [her] to a particular
location behind the stopped vehicle and in front of the first of two
police cars, with overhead lights on,” and “questioned her about
drug activity.” Id. The court concluded that, while the defendant
was not subject to seizure as a result of the traffic stop, she was
unconstitutionally seized when she was “directed by the police to a
particular location, separated from the driver, and questioned about
her own possession of illegal drugs” without any particularized
suspicion. Id. at 81.
¶ 21 However, Fines predates Brendlin and Arizona v. Johnson, 555
U.S. 323 (2009), which together hold that for Fourth Amendment
purposes a passenger is seized from the moment the vehicle stops,
Brendlin, 551 U.S. at 263, until “the police have no further need to
control the scene, and inform the driver and passengers they are
free to leave,” Johnson, 555 U.S. at 333. Thus, Brendlin abrogated
9 Fines’ holding that passengers in a lawfully stopped vehicle are not
seized as a result of the traffic stop alone.
¶ 22 Brendlin, however, did not abrogate Fines’ related holding that,
under certain circumstances, separating a passenger in a vehicle
from the vehicle’s other occupants during a traffic stop and
questioning that passenger about matters not related to the traffic
stop “after [the passenger’s] removal from the stopped vehicle” can
constitute a Fourth Amendment seizure. Fines, 127 P.3d at 81.
¶ 23 For safety purposes, police may order the occupants of a
stopped vehicle to get out of the vehicle, Maryland v. Wilson, 519
U.S. 408, 413, 415 (1997), or may order them to remain in the
vehicle with their hands up, United States v. Moorefield, 111 F.3d
10, 11 (3d Cir. 1997), without effecting a secondary seizure.
Similarly, police may subject drivers and passengers to questioning
(subject, of course, to the Fifth Amendment rights of the persons
questioned) not related to the purpose of the stop so long as the
questioning does not measurably extend the stop. Johnson, 555
U.S. at 333. However, police may only conduct a pat-down of a
person during a traffic stop if they “have an articulable and
objectively reasonable belief that [the] person in the car may be
10 armed and dangerous.” People v. Brant, 252 P.3d 459, 462 (Colo.
2011).
¶ 24 In short, police may constitutionally exert some level of control
over the driver and passengers in a lawfully stopped vehicle under
the justification for the stop, but beyond a certain point, police
action may constitute a second, distinct Fourth Amendment
seizure. For instance, in United States v. Saavedra, 549 F. App’x
739, 743 (10th Cir. 2013), police handcuffed a passenger and
placed him in the back of a police car during a traffic stop; this
constituted a second, distinct seizure.
¶ 25 It follows that there may be instances when an officer effects a
secondary seizure beyond the initial traffic stop by separating a
passenger from the car and the car’s other occupants and
questioning the passenger about matters unrelated to the traffic
stop. Fines, 127 P.3d at 81. But that is not the case here.
¶ 26 Harmon’s characterization of the officer’s actions as taking,
moving, isolating, or secluding her in an alley away from her
companions is not supported by the record. As noted, the vehicle in
which Harmon was a passenger stopped in or adjacent to the alley,
and everyone remained nearby during the stop. According to the
11 officer’s hearing testimony, which was unrebutted, Harmon was
within five to ten feet of the vehicle at all times. Though the officer
testified that Harmon’s companions stood with another officer
separated from Harmon, Harmon did not elicit any testimony about,
or otherwise challenge, the distance between her and her
companions.
¶ 27 Harmon further contends that her physical separation from
the other passengers constituted a separate seizure because, like
the defendant in Fines, she reasonably believed she had to follow
the officer’s instruction to “step over here.” However, since Fines,
the United States Supreme Court has recognized that the
circumstances of a stop itself communicate to reasonable
passengers that they are not “free to leave, or to terminate the . . .
encounter any other way, without advance permission.” Brendlin,
551 U.S. at 258.
¶ 28 By extension, the nature of an ongoing traffic stop would
communicate to a reasonable passenger in Harmon’s position that
she was not free to disregard the officer’s instruction as to where to
stand during the stop. So, under these circumstances, Harmon’s
reasonable belief that she was not free to ignore the instruction was
12 the result of the ongoing lawful seizure and is not, standing alone,
sufficient to demonstrate that a secondary seizure occurred.
¶ 29 Actions that would themselves support the conclusion that a
seizure occurred could, in instances when a lawful seizure is
already underway, be simply incidental to the lawful seizure. Under
these circumstances, the officer’s direction to “step over here,”
regardless of its subjective motivation, was merely incidental to the
ongoing lawful seizure.
¶ 30 Accordingly, Harmon has not demonstrated that her physical
separation from the other occupants of the vehicle rises to the level
of a separate seizure. Cunningham, ¶ 14; Outlaw, 17 P.3d at 155.
¶ 31 Finally, the officer’s questions about drugs, weapons, and the
contents of Harmon’s purse did not render the ongoing seizure
unlawful or constitute a separate seizure. 6 “An officer’s inquiries
into matters unrelated to the justification for the traffic stop . . . do
not convert the encounter into something other than a lawful
seizure, so long as those inquiries do not measurably extend the
6 Harmon makes no contention on appeal that the officer asked these questions while she was in custody, so her responses do not implicate her rights under the Fifth Amendment and Miranda, 384 U.S. 436.
13 duration of the stop.” Johnson, 555 U.S. at 333. In this case, there
is no evidence that the officer’s questions of Harmon prolonged the
traffic stop. The record reflects that the officer asked the group if
anyone had weapons or drugs and asked Harmon what was in her
purse shortly after all of the occupants of the car got out so the dog
could perform its sniff. Accordingly, the record does not permit a
conclusion that the officer’s questions measurably extended the
stop. Nor did the officer’s “brief off-topic questions . . . transform
the traffic stop into a seizure of unreasonable duration.” People v.
Chavez-Barragan, 2016 CO 66, ¶ 26.
¶ 32 For these reasons, we conclude that the record does not
support Harmon’s allegations that a secondary seizure occurred
beyond the one already in effect as a result of the traffic stop.
Because the police conduct did not violate Harmon’s Fourth
Amendment rights, the trial court correctly denied her motion to
suppress.
III. Other Issues
¶ 33 Harmon also contends that reversal is required because the
trial court (1) clearly erred in finding that the dog alerted to her
rather than the vehicle and (2) “analyzed the wrong Fourth
14 Amendment event” — namely, the search of her purse. We agree
that the record does not support a finding that the dog directly
alerted to Harmon. However, neither this erroneous finding nor the
court’s analysis of the lawfulness of the search of her purse affects
our analysis on appeal. Accordingly, reversal is not warranted on
these bases.
IV. Conclusion
¶ 34 The judgment of conviction is affirmed.
JUDGE WELLING and JUSTICE MARTINEZ concur.