People v. Allen

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          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

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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.

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         [¶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 ...