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People v. Brown

Court of Appeals of Colorado, Third Division

October 20, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Carl A. Brown, Defendant-Appellant.

         Adams County District Court No. 13CR1295 Honorable John E. Popovich, Jr., Judge

         JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

          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.

          OPINION

          WEBB JUDGE.

         ¶ 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 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 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.").

         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. ...


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