COLORADO COURT OF APPEALS

Court of Appeals No. 14CA0959 Adams County District Court No. 13CR1295 Honorable John E. Popovich, Jr., Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Carl A. Brown,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division III Opinion by JUDGE WEBB Hawthorne and Navarro, JJ., concur

Announced October 20, 2016

Cynthia H. Coffman, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Rachel K. Mercer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Does the Fourth Amendment allow police officers to impound

a car only because the driver and sole occupant was cited — but

not arrested — for driving on a suspended license? If the answer is

“no,” then is the ensuing inventory search unlawful? These are

novel questions in Colorado.

¶2 A jury convicted Carl A. Brown of possession of a controlled

substance (over two grams) and possession of a controlled

substance with intent to distribute. The trial court sentenced him

to ten years in the custody of the Department of Corrections, plus

five years of mandatory parole.

¶3 On appeal, Mr. Brown raises contentions of an illegal

impoundment and inventory search during which the drugs were

discovered, an unlawful peremptory challenge under Batson,

improper expert testimony by police officers, prosecutorial

misconduct in closing argument, failure to merge the convictions,

and the trial court’s misunderstanding of its sentencing discretion.

Because we agree that the impoundment and inventory search of

1 Mr. Brown’s car violated the Fourth Amendment,1 we reverse and

remand for the trial court to grant his motion to suppress.2

I. Impoundment and Inventory Search

A. Background

¶4 Aurora police officers pulled Mr. Brown’s car over after he

failed to make a complete stop at a stop sign.3 During the traffic

stop, the officers learned that Mr. Brown was driving on a

suspended license. Based on this violation, they chose to issue Mr.

Brown a summons, but not to arrest him. Still, the officers decided

to impound his car. While waiting for the tow truck, one of them

performed an inventory search and found the drugs. Only then did

they arrest Mr. Brown.

B. Preservation

¶5 The Attorney General asserts that Mr. Brown failed to preserve

his contention that impoundment of his car was not

1 Mr. Brown does not make a separate argument based on the counterpart provision of the Colorado Constitution. See Colo. Const. art. II, § 7. 2 Given this conclusion and because Mr. Brown’s remaining

contentions are unlikely to arise on retrial, we need not address them. 3 Mr. Brown does not contest the validity of the traffic stop.

2 constitutionally reasonable, given an exception — discussed more

fully below — to the warrant requirement that allows impoundment

without a warrant under some circumstances. This assertion

misses the mark for two reasons.

¶6 First, during the suppression hearing, defense counsel argued:

[The officers] were going to issue a summons and release him. You get to at that point whether or not they had a right to search his car, inventory search his car. And the officer had the discretion, pursuant to their manual, to leave the car on the scene if they can verify the ownership, which they admitted on the stand it was, in fact, Mr. Brown’s car. It had valid insurance, registration and plates. At that point the stop should have been over. No further contact should have been conducted.

....

This is an attempt to, in essence, create their own reason to inventory search this car in order to verify an anonymous tip that they were unable to verify earlier.

¶7 Second, after the prosecutor defended the impoundment, the

trial court ruled against Mr. Brown on the issue. See People v.

Syrie,

, 223 n.7 (Colo. 2004) (An issue is preserved if

“the trial court [has an] adequate opportunity to make factual

findings and legal conclusions.”).

3 C. Standard of Review

¶8 A trial court’s ruling on a motion to suppress presents a mixed

question of fact and law. People v. Martinez,

(Colo. App. 2007). We defer to the trial court’s findings of fact if

they are supported by competent evidence in the record, but we

review its conclusions of law de novo.

Of course, “[w]e review de

novo the trial court’s ultimate legal conclusion of whether a seizure

violated constitutional prohibitions against unreasonable searches

and seizures.” People v. Funez-Paiagua,

.

D. Law

1. Inventory Searches

¶9 The Fourth Amendment to the United States Constitution

prohibits unreasonable searches and seizures. And under the

Fourth Amendment, searches conducted without a warrant are

presumptively unreasonable, unless the search comes within an

exception to the warrant requirement. People v. Vaughn,

. The prosecution bears the burden of overcoming this

presumption by establishing one of these exceptions. People v.

Winpigler,

(Colo. 1999).

4 ¶ 10 This case concerns the exception that “permits officers to

conduct an inventory search of a vehicle without a warrant based

on probable cause when that vehicle is lawfully impounded by law

enforcement officials.” Vaughn, ¶ 14; see Colorado v. Bertine,

(1987) (Because inventory searches further police

caretaking procedures, “[t]he policies behind the warrant

requirement are not implicated in an inventory search, nor is the

related concept of probable cause.”) (citation omitted). This

exception exists because an inventory search does not seek to

obtain evidence but is “designed to protect the owner’s property

while it is in police custody, to insure against claims concerning lost

or damaged property, and to protect the police from any danger

posed by the contents of the vehicle.” Pineda v. People,

(Colo. 2010), disapproved of on other grounds by

Vaughn, ¶ 11 n.7.

¶ 11 Still, the decision to impound a vehicle and the ensuing

inventory search are separate processes, both of which “must meet

the strictures of the Fourth Amendment.” United States v. Duguay,

(7th Cir. 1996); accord King v. Commonwealth,

(Va. Ct. App. 2002) (“The validity of the

5 impoundment is a question separate from the validity of the

subsequent inventory search and must be determined first.”).

Thus, because the act of impoundment “‘gives rise to the need for

and justification of the inventory [search],’ the threshold inquiry

when determining the reasonableness of an inventory search is

whether the impoundment of the vehicle was proper.” State v.

Gauster,

(Minn. 2008) (alteration in original)

(quoting State v. Goodrich,

(Minn. 1977)).

¶ 12 Mr. Brown acknowledges — as he must — that “[a]fter validly

impounding a vehicle, an officer may make an inventory search of

its contents.” People v. Milligan,

(Colo. App. 2003)

(emphasis added). Instead, he asserts that because the prosecution

failed to prove the legality of the impoundment, a threshold Fourth

Amendment violation occurred, which fatally tainted the inventory

search.4 Examining this assertion requires us to take a closer look

at the law of impoundment.

4At oral argument, the Attorney General conceded that if the impoundment fails, it takes the inventory search down as well.

6 2. Lawful Impoundment

¶ 13 To begin, everyone would agree that “[t]he impoundment of an

automobile is a seizure within the meaning of the Fourth

Amendment.” Miranda v. City of Cornelius,

(9th

Cir. 2005). Even so, an impoundment by the police without a

warrant satisfies the Fourth Amendment if it occurs in furtherance

of “public safety” or “community caretaking functions,” such as

removing “disabled or damaged vehicles” and “automobiles which

violate parking ordinances and which thereby jeopardize both the

public safety and the efficient movement of vehicular traffic.” South

Dakota v. Opperman,

(1976) (citation

omitted).5 Like the exception for inventory searches, this exception

to the warrant requirement recognizes that the purpose of the

impoundment is not to obtain evidence. In every inventory search

case, then, the dilemma between a seizure and the lack of a warrant

5 Impoundment may also occur when it is authorized by a state statute. See, e.g., United States v. Gillon,

(8th Cir. 2003) (impoundment lawful here where statute authorized impoundment incident to citation for operating vehicle without financial liability coverage); United States v. Rios,

(10th Cir. 1996) (state statute authorizes impoundment of improperly registered vehicle). But the Attorney General does not cite to any such Colorado statute.

7 or other permissive court order must be resolved by determining

whether “the state [has] an interest in impoundment that outweighs

the individual’s Fourth Amendment right to be free of unreasonable

searches and seizures.” Gauster,

.

¶ 14 As part of the legal framework for this determination, when

departmental regulations give police the discretion to impound a

vehicle, often “decisions to impound will be upheld as long as that

discretion has been exercised according to standard criteria.”

Milligan,

; see Bertine,

(“[R]easonable

police regulations relating to inventory procedures administered in

good faith satisfy the Fourth Amendment, even though courts might

as a matter of hindsight be able to devise equally reasonable rules

requiring a different procedure.”). But not always.

¶ 15 “[T]he fact that officers may have conducted an inventory

search in accordance with procedures does not, of itself, necessarily

mean that the inventory search was reasonable.” People v. Gee,

(Colo. App. 2001); accord People v. Hicks,

,

(1979) (“The words ‘routine

inventory search’ are not a ‘talisman in whose presence the Fourth

Amendment fades away.’” (quoting Coolidge v. New Hampshire, 403

, 461 (1971))), overruled by People v. Bannister,

(Colo. 1980); see also United States v. Sanders,

(10th Cir. 2015) (“Protection against unreasonable

impoundments, even those conducted pursuant to a standardized

policy, is part and parcel of the Fourth Amendment’s guarantee

against unreasonable searches and seizures.”). Thus, by any fair

account, a decision upholding an inventory search based on a

policy — but without asking whether the criteria for the underlying

impoundment satisfy the Fourth Amendment — is like the emperor

with no clothes.

E. Analysis

¶ 16 Although a written copy of the Aurora department policy is not

in the record, standard policies regulating inventory searches do

not need to be in writing. Gee,

. Rather,

“unwritten policies of a police department that are routinely used by

officers in conducting inventory searches are standards that may be

considered in determining the reasonableness of an inventory

search.”

¶ 17 At the suppression hearing, the officer who ordered the

impoundment testified that when Mr. Brown was pulled over, his

9 car was “off the roadway” and not blocking traffic. Still, the officer

said that the car was impounded because “[Mr. Brown’s] license

was suspended.” He added that “[Mr. Brown] was detained . . .

[and] [h]e would have been issued a summons and released there

and the vehicle impounded.”

¶ 18 As to the policy, the officer explained that “[p]art of our

department policy is we impound vehicles with a suspended

license” — “Our routine procedure is that if they don’t have a valid

driver’s license, the vehicle is impounded.” The officer also testified

that the decision to impound is “up to the officer’s discretion.”

¶ 19 For the prosecutor, so far, so good. But then the following

cross-examination occurred:

Q: . . . You have the discretion, correct?

A: Yes.

Q: And part of the circumstances around that are whether the car is blocking traffic, impeding traffic?

A: Yes.

Q: Whether the person is the owner of the car?

A: Yes.

10 Q: Did you give Mr. Brown the option . . . of whether he wished his car to remain on scene or to be towed?

A: No.

Q: Why not?6

A: He already demonstrated that he is going to drive his vehicle on a suspended license.

¶ 20 True enough, as the trial court found, the department’s policy

gave the officer discretion to impound Mr. Brown’s car because his

license was suspended. But removing the potential for abuse of

unbridled discretion moves the Fourth Amendment analysis

forward only half way. More analysis is required because “strict

adherence to standard police department procedures . . . does not

necessarily satisfy the Fourth Amendment reasonableness

standard.” People v. Hauseman,

(Colo. 1995),

disapproved of on other grounds by Vaughn, ¶ 11 n.7; see Miranda,

(“We begin with the premise . . . that the decision

to impound pursuant to the authority of a city ordinance and state

6 For those who read this opinion without the benefit of significant trial experience, one of the time-honored rules of cross-examining a witness is “never ask why.”

11 statute does not, in and of itself, determine the reasonableness of

the seizure under the Fourth Amendment . . . .”).

¶ 21 And herein lies the problem: the prosecutor failed to prove that

apart from Mr. Brown driving on a suspended license, any other

fact made the impoundment reasonable. For example, the

prosecutor did not even ask the officer whether Mr. Brown lacked

proof of insurance or had produced proper registration. And in

response to defense counsel’s question, the police officer testified, “I

don’t recall who the vehicle was registered to.” Nor did the

prosecution present any evidence that the location of the car

imperiled other drivers, a criterion under the policy.

¶ 22 Consistent with the prosecutor’s narrow position, the trial

court found only that Mr. Brown’s license was suspended and the

officer had relied on the policy, neither of which was disputed. Yet,

the following evidence — also undisputed — weighs against the

impoundment having been reasonable, on three levels.

¶ 23 First, consider the officer’s testimony that he had planned to

release Mr. Brown after issuing him a summons for driving on a

suspended license, not to arrest him. See People v. Grenier,

(Colo. App. 2008) (Impoundment was reasonable

12 where “at the time defendant was taken into custody, there was no

one else available to take the car . . . [and] the car could not be left

unattended because, considering the area of town, the car would

likely not be there when defendant returned.”); see also Milligan,

(An officer’s impoundment decision was upheld where

“a vehicle was driven illegally and the driver has been arrested” and

“the practice is to impound the vehicle, unless a passenger has a

valid driver’s license and is then allowed to drive the car away.”);

Gee,

(There was no Fourth Amendment violation

where a “policy permitted an officer to have a vehicle towed when a

driver was arrested for driving under the influence . . . [and] the

officer, in deciding to tow the vehicle, considered the remote

location of the vehicle, the possibility of vandalism, the fact that the

vehicle was from out of state, and the ‘rationality of the

defendant.’”).

¶ 24 Unlike such cases where the driver was arrested, because Mr.

Brown could have remained to safeguard his car, the police

13 caretaking function would not have been implicated.7 For this

reason, “cases in which the driver of a vehicle is arrested are

fundamentally different from cases in which the driver remains

free.” State v. Rohde,

(Minn. 2014). As the

court explained in Gauster,

, “[w]hile the need for

the police to protect the vehicle and its contents is often present

when police officers arrest a driver,” a driver who is not arrested

“never relinquishe[s] control of his vehicle and ha[s] no need to

leave it unattended.” Cf. People v. Litchfield,

(Colo. 1996) (“Because [defendants] would have maintained control

over the car and their belongings within it while the officers checked

with the rental company, there was no need for the officers to

inventory the contents of the car.”). Stated in the simplest terms,

7 The Attorney General relies extensively on People v. Vaughn,

, where the supreme court found an inventory search to be valid where the defendant’s vehicle had been lawfully impounded. Although this case also involved impoundment based on a suspended license, because the driver was arrested, it is inapposite. Similarly, United States v. Sanders,

(10th Cir. 2015), on which the Attorney General relied at oral argument, involved the impoundment of a vehicle parked on private property, after the driver had been arrested. And in any event, the Court of Appeals held the impoundment unlawful under the Fourth Amendment.

14 “[t]he state owes no legal duty to protect things outside its custody

from private injury.” Duguay,

. Without this

justification the impoundment may still stand, but its legal

foundation is weakened.

¶ 25 Second, consider that Mr. Brown’s inability to lawfully drive

the car does not alone make the impoundment reasonable. See

Taylor v. State,

(Ind. 2006) (“The fact that

[defendant] was unable to drive his car because his permit was

suspended does not in this instance support a conclusion that the

car itself was imperiled or constituted a potential hazard which [the

police officer] reasonably believed he needed to address.”); see also

3 Wayne R. LaFave, Search and Seizure § 7.3(c) (5th ed. 2012)

(When a “driver is only ticketed but cannot himself operate the car

because of an expired license, impoundment of the vehicle is

improper unless the driver is ‘unable to provide for its custody or

removal.’”) (citations omitted).

¶ 26 Jerking Mr. Brown’s inability lawfully to drive out from under

the already shaky impoundment is appropriate because the

prosecutor also did not present any evidence of generally accepted

reasons to impound, such as that the car was in an unsafe location

15 or impeding traffic. See Miranda,

(“An officer

cannot reasonably order an impoundment in situations where the

location of the vehicle does not create any need for the police to

protect the vehicle or to avoid a hazard to other drivers.”); see also

Thompson v. State,

(Ark. 1998) (“[I]t is

permissible for an officer to impound and inventory a vehicle when

the driver is physically unable to drive the car, and leaving it on the

side of the road would create a safety hazard.”) (emphasis added);

cf. People v. Trusty,

,

(1973)

(An inventory search was reasonable where the vehicle “was parked

in a high-risk area, the parking lot of a tavern; it had out-of-state

license plates; the whereabouts of its owner were unknown; and

[defendant], who was intoxicated and subsequently placed under

arrest, had voluntarily turned over the keys to the auto to the

officer and invited a search of the vehicle.”).

¶ 27 Third, consider that the suppression hearing record is barren

of any reason why Mr. Brown could not have called someone else to

lawfully drive his car or summoned a tow truck himself, options

16 that the officers did not extend to him.8 After all, because the police

did not plan on arresting him, he would have needed to arrange for

his own transportation. Those arrangements could have been as a

passenger in his car, being driven by someone else, or sitting in the

cab of a tow truck that he had summoned. Compare King,

(“[T]he owner of the vehicle[] was not taken into

custody or removed from the scene and, although he could not

personally drive the vehicle, the evidence failed to show he was

unable to arrange for its removal to another location, or to

safeguard his property.”), with Commonwealth v. Daley,

(Mass. 1996) (Impoundment of an unregistered and

uninsured vehicle was reasonable because “the officers could not

permit the continued operation of this illegal vehicle on the public

roadways, nor could they leave the vehicle unattended on the

8 We recognize that in Colorado v. Bertine,

(1987), the Supreme Court rejected the argument that the police are required to give an arrested driver “an opportunity to make alternative arrangements” before impounding his or her vehicle. But again, that case involved impoundment after an arrest. See State v. Rohde,

(Minn. 2014) (distinguishing Bertine because “when the driver is not arrested, it is ‘not necessary for the police to take [the] vehicle into custody in the first place’”) (alteration in original) (citation omitted).

17 shoulder of a busy main road.”). This lack of evidence leaves the

impoundment teetering.

¶ 28 Given all this, one might well ask whether the impoundment

can be saved from toppling under its own weight by the police

officer’s testimony that Mr. Brown had “already demonstrated that

he is going to drive his vehicle on a suspended license.” At first

blush, impounding a vehicle to prevent a driver with a suspended

license from operating it would further public safety.

¶ 29 But the prosecutor did not rely on this testimony below, and

on appeal, the Attorney General does not do so either. See Syrie,

(Where the “prosecut[ion] chose not to argue that

the search . . . was incident to lawful arrest” at the suppression

hearing, it “surrender[ed]” that argument and “conceded th[e]

issue.”); see also Moody v. People,

(Colo. 2007)

(“Our starting point is the basic principle of appellate jurisprudence

that arguments not advanced on appeal are generally deemed

waived.”).

¶ 30 Nor did the trial court find that the officers had impounded the

car because otherwise Mr. Brown would have driven off, after they

left. And from the officer’s conclusory statement, we do not know

18 whether Mr. Brown told the officers that he would drive off as soon

as they left or if they only inferred that he would do so. See Moody,

(Noting “the hazards encountered by the court of

appeals in navigating sua sponte review: it placed itself in the

tenuous position of resolving fundamental facts that had not been

identified during the suppression hearing.”).

¶ 31 True enough, an appellate court “can affirm for any reason

supported by the record, even reasons not decided by the trial

court.” Roque v. Allstate Ins. Co.,

. But applying

this principle sua sponte runs counter to the teaching of Moody.

And in any event, without further explanation, this testimony does

not provide sufficient support for impounding Mr. Brown’s car. See

Miranda,

(rejecting argument that “impoundment

satisfied the ‘caretaking’ function by deterring [defendants] from

repeating this illegal activity in the future”).

¶ 32 In the end, we agree with the well-reasoned cases holding that

even where a department policy allows officers to impound a

vehicle, the decision to impound must still satisfy the requirements

of the Fourth Amendment. Because the prosecution did not meet

its burden to show that impounding Mr. Brown’s car was

19 reasonable, the inventory search was unlawful. And because the

search was unlawful, any evidence found should have been

suppressed. See People v. Prescott,

(Colo. App.

2008) (“[E]vidence obtained by the police through unlawful means

. . . is inadmissible and must be suppressed.”).9

II. Conclusion

¶ 33 The judgment is reversed and the case is remanded for the

trial court to grant the motion to suppress and for proceedings

consistent with this opinion.

JUDGE HAWTHORNE and JUDGE NAVARRO concur.

9 We recognize that the exclusionary rule is “applicable only where its remedial objectives are thought most efficaciously served — that is, where its deterrence benefits outweigh its substantial social costs.” Hudson v. Michigan,

(2006) (citation omitted). However, because the Attorney General did not argue against suppression on this basis, we decline to do so sua sponte.

20