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Verigan v. People

Supreme Court of Colorado, En Banc

June 11, 2018

Kimberlie Deann Verigan, Petitioner
The People of the State of Colorado. Respondent

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 12CA2069

          Attorney for Petitioner: Douglas K. Wilson, Public Defender Nathaniel E. Deakins, Deputy Public Defender Denver, Colorado.

          Attorney for Respondent: Cynthia H. Coffman, Attorney General Jillian J. Price, Assistant Attorney General Denver, Colorado.



         ¶1 This case requires us to decide whether the Supreme Court's fractured opinion in Missouri v. Seibert, 542 U.S. 600 (2004), created a precedential rule that could be applied in future cases.[1]

         ¶2 After pulling over Kimberlie Verigan's car during a traffic stop, police noticed potential contraband in the car. Police then searched the car and without providing the warnings required by the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966), questioned Verigan. After Verigan admitted to possessing methamphetamines, the police arrested her and brought her to a police station, where she received Miranda warnings, waived her rights, and again confessed to possessing methamphetamines.

         ¶3 Verigan ultimately moved to suppress her statements, asserting, as pertinent here, that the police had obtained her second confession through the use of the type of two-stage interrogation technique that a majority of the Supreme Court had ruled impermissible in Seibert. The trial court denied Verigan's motion, and Verigan was subsequently convicted. She then appealed, and a division of the court of appeals affirmed, reasoning that because Seibert was a fractured opinion with no agreement by a majority on the principles of law to be applied, Seibert did not announce a precedential rule. See People v. Verigan, 2015 COA 132, ¶ 36, ___ P.3d ___. The division therefore applied the pre-Seibert rule set forth in Oregon v. Elstad, 470 U.S. 298 (1985), and concluded that because Verigan's statements were admittedly voluntary, they were admissible. Id. at ¶¶ 36-37.

         ¶4 We now affirm the division's judgment, but our reasoning differs from that on which the division relied. Specifically, unlike the division, we join the vast majority of courts that have addressed the issue now before us and conclude that Justice Kennedy's concurring opinion in Seibert, which enunciated the "narrowest grounds" on which the members of the majority concurred, is the controlling precedent to be applied. Applying Justice Kennedy's test here, we conclude that the officers in this case did not engage in a two-step interrogation in a deliberate attempt to undermine the effectiveness of the Miranda warnings provided to Verigan. Accordingly, Elstad applies, and because Verigan's pre- and post-warning statements were indisputably voluntary, the division correctly determined that Verigan's post-warning statements were admissible. We therefore affirm the division's judgment.

         I. Facts and Procedural History

         ¶5 At approximately 6:00 a.m. one morning, Officers Brewer and Mitchell of the Colorado Springs police department observed a car driven by Shane Smith slowly roll through a stop sign. Verigan, who owned the car, was sitting in the front passenger seat, and another man, a co-worker, was sitting behind her in the backseat. The three were on their way to work at a home renovation project.

         ¶6 The officers activated their lights and initiated a traffic stop. Smith then pulled into the driveway of the work site, a private residence, and the officers parked behind Verigan's car, blocking about half of the driveway.

         ¶7 When the officers determined that Smith did not have a driver's license, they placed Smith in the backseat of the police car. The officers then approached the car to speak with Verigan, and Verigan told them that the car belonged to her. The officers asked Verigan for her insurance and registration cards, and while she was looking for those documents, Officer Mitchell noticed a marijuana pipe and an unmarked pill bottle in plain view inside the car.

         ¶8 The officers then had the remaining passengers step out of the car so that they could search it. While Officer Brewer conducted this search, Officer Mitchell led Verigan a short distance away from the vehicle and asked her if there was anything illegal in the vehicle, to which Verigan responded, "There may be, " because she saw a man who had been in a nearby car walk up during the initial part of the traffic stop and drop a baggy inside. Verigan and Officer Mitchell also made casual conversation.

         ¶9 In the meantime, Officer Brewer discovered a backpack containing a camera case. The camera case contained a lighter, cut straws, methamphetamine pipes, and two small baggies, one with a "brownish crystal-type substance and one with a white crystal-type substance" (these substances were later determined to be methamphetamine). Officer Brewer also found "women's items, " such as makeup, in the backpack. He placed these items on the roof of the car and advised Officer Mitchell to detain Verigan until they could determine who had possession of the backpack. Officer Mitchell felt that Verigan was not free to leave at this point.

         ¶10 Officer Mitchell then turned to Verigan and asked her if she had anything illegal on her. She responded that she had a knife, and Officer Mitchell patted her down and recovered a box cutter from her pants pocket. He also felt several smaller objects inside her pockets. Verigan stated that it would be painful for the officer to search her more thoroughly because she had fallen and was injured. Officer Mitchell replied that he would have to call a female officer to come do a more thorough search. Because he believed that Verigan was in true pain, however, and because he did not want to cause her any unnecessary discomfort, he told her that it would be in her best interest "just to cooperate" and tell him if she had anything illegal on her person. She then admitted that she had a small baggy of methamphetamine in her pocket.

         ¶11 After Verigan admitted to having the baggy of methamphetamine on her person, Officer Mitchell walked her back to her car, and Officer Brewer asked if the items on the roof of the car and the items in the backpack were hers. In doing so, Officer Brewer indicated that his goal in asking questions at the scene was to determine who owned the recovered methamphetamine. Verigan replied that "the backpack was basically everybody's, but mostly hers, and that the camera case in particular had been handed to her by [the backseat passenger]." At no point during this encounter did either of the officers provide Verigan with a Miranda warning.

         ¶12 At approximately 6:20 a.m., the officers arrested Verigan and brought her to the police station. There, at 7:34 a.m., Officer Brewer advised Verigan of her Miranda rights. Verigan stated that she understood her rights and that she wished to talk to the officer. Officer Brewer then asked Verigan about the methamphetamine in the backpack, the brown substance that he had found, how long Verigan had been using methamphetamine, and whether the methamphetamine in her pocket belonged to her. Consistent with what she had said at the scene, Verigan responded that "the backpack was kind of everybody's backpack who was in the vehicle. Everybody had some stuff in there." She also said that she had been using methamphetamine since 1999 and admitted that the baggy of methamphetamine found in her pocket belonged to her. She further said that the "brown substance" was methamphetamine residue, and she explained how a person could smoke it.

         ¶13 Verigan was subsequently charged with one count of possession of methamphetamine and one count of possession of drug paraphernalia, and as pertinent here, she moved to suppress her unwarned statements during the traffic stop and the statements that she made at the police station after waiving her Miranda rights. The trial court held a hearing on this motion and denied it, concluding that because Verigan was not in custody when the officers questioned her at the scene, the officers were not required to provide Miranda warnings. Accordingly, the court concluded that Verigan's pre- and indisputably voluntary post-Miranda statements were admissible.

         ¶14 A jury ultimately convicted Verigan as charged, and Verigan appealed, arguing that the trial court had erroneously denied her motion to suppress. Specifically, Verigan argued that (1) her initial statements at the scene should have been suppressed because they were the product of a custodial interrogation without the benefit of Miranda warnings and (2) her subsequent warned statements at the police station should have been suppressed under the plurality opinion's analysis in Seibert.

         ¶15 In a unanimous, published decision, a division of the court of appeals affirmed Verigan's conviction. Verigan, ¶ 39. As pertinent here, the division concluded that Verigan was the subject of a custodial interrogation at the scene, and therefore her unwarned statements there should have been suppressed. Id. at ¶ 27. The division rejected, however, Verigan's argument that the statements that she made at the police station also should have been suppressed. Id. at ¶ 37. The court concluded that the various opinions in Seibert did not announce a precedential rule that binds lower courts because the plurality opinion and Justice Kennedy's concurring opinion were "mutually exclusive" and therefore, the division could not discern a "narrowest ground" on which the five justices had agreed. Id. at ¶¶ 35-36. The division thus concluded that Elstad ...

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