Interlocutory Appeal from the District Court Weld County
District Court Case No. 18CR1024 Honorable Marcelo A. Kopcow.
Attorneys for Plaintiff-Appellant: Clifford E. Riedel,
District Attorney, Eighth Judicial District David P.
Vandenberg, Chief Deputy District Attorney Fort Collins,
Colorado.
Attorneys for Defendant-Appellee: Houtchens, Greenfield,
Sedlak & Zacheis, LLC Melanie A. Sedlak Greeley,
Colorado.
OPINION
SAMOUR
JUSTICE.
¶1
Following a traffic stop of a Cadillac driven by Billie
Thomas Allen, Greeley Police Department officers conducted an
inventory search that yielded a handgun and methamphetamine.
In this interlocutory appeal brought by the People, we must
determine whether the district court erred in granting
Allen's pretrial request to suppress those items. The
People argue that no constitutional violation occurred when
the Cadillac was seized and inventoried because the officers
properly exercised their discretion in deciding to impound
it. Alternatively, the People maintain that the officers were
authorized to conduct either a protective search for weapons
or a search pursuant to the automobile exception to the
warrant requirement. Whether the officers had probable cause
to search the Cadillac, as required by the automobile
exception, is a close question, but one we ultimately
conclude the district court resolved correctly. And, because
we also agree with the district court that neither the
protective search exception nor the inventory search
exception can justify the challenged search, we affirm.
I.
Facts and Procedural History
¶2
While working patrol at approximately 2:30 in the morning,
Officer Randall Snyder observed a Cadillac with two occupants
fail to stop at a posted stop sign in Greeley, Colorado. The
Cadillac stopped, but not until after passing the stop sign
and entering the intersection of 6th Avenue and 8th Street.
Shortly after the Cadillac took a right-hand turn on 8th
Street, Officer Snyder activated his emergency lights to
initiate a traffic stop. But the Cadillac did not yield
immediately and continued westbound on 8th Street toward 7th
Avenue. When the Cadillac reached 7th Avenue, it turned into
the parking lot of the Clarion Hotel.
¶3
Once in the parking lot, the Cadillac moved at a slow speed
for a distance of about a city block. Because the passenger
in the Cadillac ducked his head several times to possibly
hide something under his seat, Officer Snyder radioed for
assistance. As the Cadillac reached the north end of the
parking lot, it made a left-hand turn, which was quickly
followed by a sharp right-hand turn into an empty parking
space. When the Cadillac started to back out, apparently
because it was not parked straight and was sticking out of
the parking space a few feet, Officer Snyder sounded his
siren a couple of times to make sure the Cadillac didn't
hit his patrol car. The Cadillac then came to a complete
stop-Officer Snyder estimated that this was approximately a
minute after he first turned on his emergency equipment.
¶4
Officer Steven Vaughn arrived a short while later in response
to Officer Snyder's call for assistance. The two officers
approached the Cadillac on foot- Officer Snyder on the
driver's side and Officer Vaughn on the passenger's
side. The driver, Allen, provided Officer Snyder a Colorado
driver's license but could not produce the vehicle's
registration or proof of insurance. Allen indicated that he
was in the process of buying the Cadillac from a Cañon
City resident, Klarissa Swift, and that he was self-insured.
But he couldn't provide documentation to support either
claim.
¶5
The passenger in the Cadillac identified himself as Robert
Cross. That name was familiar to Officer Snyder because he
had been told by other officers during the preceding days or
weeks that Cross was possibly carrying a handgun and dealing
methamphetamine. Officer Snyder conveyed this information,
along with his earlier observation of Cross's furtive
movements, to Officer Vaughn, and Officer Vaughn, in turn,
asked Cross to exit the vehicle so he could pat him down for
weapons. Finding no weapons on Cross's person, Officer
Vaughn proceeded to perform a protective search for weapons
in the area around the front passenger seat. Under that seat,
he discovered a live bullet.
¶6
While Officer Vaughn remained with the Cadillac, Officer
Snyder returned to his patrol car and ran the Cadillac's
license plate number and Allen's driver's license. He
confirmed that the vehicle was registered to Swift in
Cañon City and learned that Allen had a valid
driver's license and did not have any outstanding
warrants.
¶7
Upon returning to the Cadillac, Officer Snyder asked Allen if
he would mind stepping out of the vehicle so they could
speak, and Allen agreed to do so. Allen was not handcuffed,
no weapons were drawn, and no force was used. And Officer
Snyder employed a professional and non-aggressive tone and
demeanor. After patting Allen down for weapons and finding
none, Officer Snyder asked him how he knew Cross and what he
was doing in Greeley (since Allen's driver's license
showed he lived in Cañon City). Allen responded that
he was visiting Cross because they were old friends. Officer
Snyder then asked Allen why he failed to immediately pull
over when the patrol car's emergency lights were
activated. Allen replied that he was staying at the Clarion
Hotel and thought it would be safer to pull into the
hotel's parking lot. When Officer Snyder inquired about
Cross's furtive movements, Allen did not provide a direct
response. Finally, Officer Snyder asked Allen whether there
were any guns or illegal drugs in the Cadillac, and Allen
said that he was not allowed to own a gun because he was a
convicted felon.
¶8
As Officer Snyder was wrapping up his interview of Allen,
Cross asked if he could leave and go into the hotel, and the
officers allowed him to do so. Officer Snyder then told Allen
that he would receive a traffic citation for failing to stop
at the stop sign and for failing to provide proof of
insurance. He also advised Allen that the Cadillac would be
impounded due to the lack of registration and proof of
insurance. While Officer Snyder filled out the necessary
paperwork, Allen was allowed to return to the Cadillac and
retrieve some of his property. Once he received the traffic
citation, Allen was told he was free to leave. He left and
walked into the hotel.
¶9
Before towing the Cadillac, the officers inventoried its
contents. Under the floormat on the driver's floorboard,
they located a black semiautomatic handgun. At that point,
Officer Vaughn and Sergeant Daniel Frazen, who had just
arrived, went looking for Allen in the hotel. With the
assistance of the front desk, they eventually spotted him
walking on a sidewalk outside the hotel with a woman and
arrested him without incident. Meanwhile, Officer Snyder
continued the inventory search of the Cadillac. In the center
console, he found a bag with methamphetamine and U.S.
currency.
¶10
Allen was subsequently charged with multiple crimes,
including possession of a weapon by a previous offender and
possession of a controlled substance. Before trial, he
requested, among other things, that the evidence collected
from the Cadillac be suppressed as having been obtained
illegally. The People filed a response, arguing that the
officers were justified in seizing and inventorying the
Cadillac before impounding it. In the alternative, they
asserted that the officers were authorized to conduct either
a protective search for weapons or a search pursuant to the
automobile exception. The district court rejected all three
of the People's contentions and suppressed the handgun
and methamphetamine.[1]
¶11
The People then brought this interlocutory appeal.
II.
Jurisdiction
¶12
In limited circumstances, the People may lodge an
interlocutory appeal of a district court's order. As
relevant here, section 16-12-102(2), C.R.S. (2019), and
C.A.R. 4.1(a) authorize the People to do so when a district
court grants a defendant's motion to suppress evidence
and they certify both that the appeal is not taken for
purposes of delay and that the evidence is a substantial part
of the proof ...