County District Court No. 16CR6299 Honorable Valerie J.
J. Weiser, Attorney General, Gabriel P. Olivares, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Jacob B. McMahon,
Deputy State Public Defender, Denver, Colorado, for
1 Is a passenger in a vehicle that is lawfully stopped for a
traffic infraction seized within the meaning of the Fourth
2 In People v. Fines, 127 P.3d 79, 81 (Colo. 2006),
and People v. Jackson, 39 P.3d 1174, 1185 (Colo.
2002), the Colorado Supreme Court held that such a passenger
is not seized when the vehicle is lawfully stopped.
But after these opinions were announced, the United States
Supreme Court reached a different conclusion. In Brendlin
v. California, 551 U.S. 249, 263 (2007), the Supreme
Court held that a passenger in a car is "seized from the
moment [the] car c[o]me[s] to a halt on the side of the
3 The Colorado Supreme Court has recognized that
Brendlin overruled or abrogated the contrary Fourth
Amendment holding in Jackson but has not explicitly
done the same with respect to Fines. Tate v.
People, 2012 CO 75, ¶ 8; People v. Marujo,
192 P.3d 1003, 1006 (Colo. 2008). We conclude that
Brendlin also abrogated the contrary holding in
Fines, as Fines is expressly predicated on
4 The continued viability of Fines matters in this
case because defendant, Sarah Jean Harmon, was a passenger in
a vehicle that was lawfully stopped by the police. Under the
Supreme Court's holding in Brendlin, because the
traffic stop was lawful, Harmon was seized "from the
moment [the] car came to a halt." 551 U.S. at 263.
Because it is uncontested that the stop was lawful under the
Fourth Amendment, there was no basis to suppress the fruits
of the seizure unless some other unconstitutional seizure was
effected by the police.
5 Recognizing this problem, Harmon contends that when the
police directed her to a spot away from the car, separating
her from the driver and the other passenger, a separate
Fourth Amendment seizure occurred. She argues that because
that seizure was supported by neither probable cause nor
reasonable suspicion, all fruits of that seizure must be
6 We reject Harmon's argument not because it is legally
unsound under the facts she posits, but because those alleged
facts are not supported by the record. Because there was no
separate seizure, there was no basis to suppress the fruits
of the seizure, and the trial court correctly denied
Harmon's motion to suppress.We also reject Harmon's
other claims of error and affirm the judgment of conviction.
7 While on patrol, a police officer drove past a vehicle with
a cracked windshield and a broken headlight. The officer
followed the car and saw that it also had an expired license
plate. The officer initiated a traffic stop, and the car
stopped in or adjacent to an alley on the side of the
roadway. During the stop, the officer recognized Harmon, who
was one of the passengers, from previous law enforcement
contacts involving illegal drugs. After collecting the
driver's registration, license, and insurance
information, the officer began filling out a citation. The
officer simultaneously called for a canine unit to conduct a
drug sniff of the exterior of the vehicle.
8 When the canine unit arrived, the officer directed the
occupants of the car to get out of the vehicle while the dog
performed the sniff. The passengers got out of the car and
remained nearby. According to the officer, he directed Harmon
to a spot five to ten feet behind the car. He stood with
Harmon there, while the driver and a second passenger stood
some distance away with the other officer.
9 The officer standing with Harmon "asked all [of the]
occupants if they had any guns, knives, drugs, [or] drug
paraphernalia on them." Because the officer had known
Harmon to have needles on her person during their previous
encounters, and in anticipation of asking for consent to
search her, he specifically asked Harmon what was in her
purse. She answered that she had a "hot rail tube,"
which she explained was an item used to snort
10 Meanwhile, the dog alerted to the odor of a controlled
substance in the vehicle, but a search of the vehicle turned
up nothing. The traffic officer then searched Harmon's
purse based on her admission about the hot rail tube. Inside
her purse, the officer found the hot rail tube and a plastic
container containing a Xanax pill and methamphetamine.
11 Before trial, Harmon sought to suppress the evidence found
in her purse. She conceded that the traffic stop was lawful
and that the officer was entitled to order her to get out of
the vehicle. She asserted, however, that the patrol officer
violated her constitutional right to be free from
unreasonable seizure when he "separated her" from
the other occupants of the car and asked her about the
contents of her purse. In particular, she argued that these