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,
Attorney for Respondent: Cynthia H. Coffman, Attorney General
Jillian J. Price, Assistant Attorney General Denver,
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.
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
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.
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.
Facts and Procedural History
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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 ...