and County of Denver District Court No. 14CR781 Honorable Ann
B. Frick, Judge Honorable Elizabeth A. Starrs, Judge
J. Weiser, Attorney General, Brittany L. Limes, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
E. Schwartz, Alternate Defense Counsel, Esteban A. Martinez,
Alternate Defense Counsel, Longmont, Colorado, for
1 Defendant, Marcus Perez, appeals the judgment of conviction
entered on a jury verdict finding him guilty of second degree
assault on a peace officer and four counts of possession of a
dangerous weapon by a previous offender. We affirm in part,
reverse in part, and remand with directions.
2 In February 2014, police officers conducted a traffic stop
of an SUV for various traffic infractions. The officers
noticed that the occupants were acting suspiciously, appeared
more nervous than the officers would have expected, and may
have been attempting to conceal something. An officer
contacted the passenger (later identified as Perez), who
provided a name and date of birth. When the officer found no
record of such an individual, he asked Perez to step out of
the car. Perez complied, but immediately started running.
3 Perez ran across a very busy street through rush-hour
traffic, and through residential and commercial areas, while
the officers pursued him. Eventually, officers caught up to
him in a residential backyard. At this point, additional
police officers arrived to assist. Perez took a fighting
stance and began to resist the officers' efforts to take
him into custody. During the fracas, Perez broke an
officer's nose. Another officer injured himself during
4 After handcuffing Perez, an officer frisked him and found
two shotgun shells in his pocket. Before advising him of his
Miranda rights, the officer asked Perez where the
gun was. Perez responded that he had thrown it away. When
asked where he had thrown it, Perez's response was
unintelligible. The officer did not pursue the inquiry
5 At some point, other officers searched the car, though it
is unclear from the record when the search occurred in
relation to Perez's statement. During the search, the
officers found a short shotgun between the center console and
the passenger seat.
6 The prosecution later charged Perez with two counts of
second degree assault on a peace officer and eight counts of
possession of a weapon by a previous offender (POWPO). All
eight POWPO charges involved the same short shotgun; there
were two separate charges (one alleging possession of a
firearm, and one alleging possession of a "dangerous
weapon") connected to each of four prior felony
convictions. Before trial, the prosecution dismissed one of
the second degree assault charges.
7 A jury convicted Perez of the remaining assault charge and
the four POWPO charges involving a dangerous weapon. At
sentencing, Perez admitted that he had three prior felony
convictions, and the parties stipulated that Perez would
receive a twenty-four-year prison sentence in this case, a
concurrent six-year prison sentence in a separate case, and a
third case would be dismissed in its entirety. At the
sentencing hearing, the court sentenced Perez to twenty-four
years in prison for second degree assault and four years in
prison for each of Perez's four POWPO counts. The
remaining POWPO charges were dismissed. The court ordered
that all of the sentences would run concurrently.
8 Perez first contends that the trial court erred by denying
his motion to suppress incriminating statements he made after
his arrest and before police advised him of his
Miranda rights. We conclude that, although admission
of the statement was erroneous, reversal is not required.
Standard of Review
9 Whether custodial interrogation has occurred in violation
of Miranda is a mixed question of fact and law.
People v. Barraza, 2013 CO 20, ¶ 15. We defer
to the trial court's findings of historical fact and will
not overturn them if they are supported by competent evidence
in the record. Id. We then review de novo the
ultimate legal effect of those facts, such as whether the
defendant was in custody, People v. Matheny, 46 P.3d
453, 459 (Colo. 2002), or whether a particular inquiry
constituted interrogation, People v. Gonzales, 987
P.2d 239, 242 (Colo. 1999). Although no Colorado appellate
court has clearly stated that whether the public safety
exception applies is a legal determination, other courts have
done so. See United States v. Liddell, 517 F.3d
1007, 1009 (8th Cir. 2008). We agree and review the issue de
10 "When reviewing a trial court's suppression
ruling, appellate courts must only consider evidence
presented at the suppression hearing." People v.
Bryant, 2018 COA 53, ¶ 19.
11 The Fifth Amendment of the United States Constitution
provides that no person shall be compelled to be a witness
against himself in a criminal case. Police must warn a person
of his rights against self-incrimination when he is subjected
to custodial interrogation. See Miranda v. Arizona,
384 U.S. 436, 478 (1966); People v. Theander, 2013
CO 15, ¶ 20. Absent such warnings, the prosecution
generally cannot introduce in its case-in-chief any statement
obtained from a suspect as a result of custodial
interrogation. Matheny, 46 P.3d at 462.
12 However, in some circumstances, police may question a
suspect in custody who has not yet received a
Miranda warning about the presence of weapons that
could immediately endanger them or members of the public.
See New York v. Quarles, 467 U.S. 649, 657-58
(1984); see also People v. Mullins, 188 Colo. 23,
27, 532 P.2d 733, 735 (1975). This exception to
Miranda, called the public safety exception, applies
most readily in the context of immediate, on-scene
investigations of a crime. See People v. Requejo,
919 P.2d 874, 879 (Colo.App. 1996). The determinative
question is whether the officer's questioning related to
an objectively reasonable need to protect the police or the
public from immediate danger associated with a weapon.
See Quarles, 467 U.S. at 655; People v.
Ingram, 984 P.2d 597, 605 (Colo. 1999).
13 In Quarles, for example, a police officer pursued
a rape suspect who had been described by the victim as
carrying a gun. 467 U.S. at 651-52. The officer chased the
suspect through a grocery store, ultimately apprehending him
in the rear of the store. Id. at 652. When the
officer frisked the suspect, he discovered that the defendant
was wearing an empty shoulder holster. Id. After
handcuffing him, but before ...