County District Court No. 13CR1295 Honorable John E.
Popovich, Jr., Judge
REVERSED AND CASE REMANDED WITH DIRECTIONS
Cynthia H. Coffman, Attorney General, Carmen Moraleda,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Rachel K.
Mercer, Deputy State Public Defender, Denver, Colorado, for
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
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
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 Mr.
Brown's car violated the Fourth Amendment,  we reverse and
remand for the trial court to grant his motion to
Impoundment and Inventory Search
4 Aurora police officers pulled Mr. Brown's car over
after he failed to make a complete stop at a stop
sign. 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.
5 The Attorney General asserts that Mr. Brown failed to
preserve his contention that impoundment of his car was not
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
[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
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,