The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY May 3, 2018

No. 14CA1390, People v. Kessler — Constitutional Law — Searches and Seizures — Warrantless Search — Search Incident to Arrest — Motor Vehicles

A division of the court of appeals considers whether the trial

court should have suppressed evidence of cocaine recovered from

defendant’s car after he was arrested for driving under the influence

because the police lacked sufficient grounds to search the car once

they seized a half-empty bottle of schnapps.

The majority concludes that officers may search the passenger

compartment of a vehicle where the circumstances give rise to a

reasonable, articulable suspicion that the vehicle might contain

evidence of the crime for which they had probable cause to arrest.

The majority further concludes that the police officers’ reasonable

suspicion that defendant’s car contained evidence of alcohol did not evaporate once the officers found some alcohol in the car. Thus, it

affirms the trial court’s denial of the motion to suppress.

The partial dissent disagrees and concludes that the police

lacked the requisite reasonable suspicion to further search the car

for alcohol once they recovered a half-empty bottle of schnapps. COLORADO COURT OF APPEALS

Court of Appeals No. 14CA1390 Grand County District Court No. 13CR58 Honorable Mary C. Hoak, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daniel Steven Kessler,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II Opinion by JUDGE MÁRQUEZ* Navarro, J., concurs Dailey, J., concurs in part and dissents in part

Announced May 3, 2018

Cynthia H. Coffman, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Jessica A. Pitts, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2017. ¶1 Defendant, Daniel Steven Kessler, appeals the judgment of

conviction entered on jury verdicts finding him guilty of possession

of a controlled substance (cocaine), driving under the influence,

possessing an open container of alcohol in a motor vehicle,

operating a motor vehicle without a license, and speeding. We

affirm.

I. Background

¶2 Kessler, who lived in Fraser, borrowed his father’s car to drive

to Denver to see his girlfriend. On his return, he was stopped by

police between Winter Park and Fraser for driving sixty-seven miles

per hour in a fifty-five mile per hour zone. Upon approaching the

car with a flashlight, the officer spotted a half-empty 375 milliliter

bottle1 of schnapps on the floor behind the passenger’s seat. The

officer asked Kessler for his license, registration, and proof of

insurance multiple times before Kessler responded by presenting

only the registration and proof of insurance; Kessler admitted that

he did not have a valid driver’s license.

1This is a pint. Glenn E. Rohrer et al., Calculation of Blood Alcohol Concentration in Criminal Defendants,

, 184 (1998).

1 ¶3 Noticing that Kessler had watery, bloodshot eyes, slurred

speech, and an odor of alcohol on his breath, the officer asked him

to step out of the car. Kessler needed to use the car door for

support to get out of the car. When the officer asked if he had been

drinking, Kessler initially told the officer that he had not;

eventually, though, Kessler told him that he had drunk from the

bottle of schnapps. The officer then administered a roadside

sobriety examination of Kessler. After Kessler performed most of

the maneuvers unsatisfactorily,2 the officer administered a

preliminary breath test (PBT), which registered .154 g/210L, before

arresting him for driving under the influence (DUI) and placing him

in the back of a police car.

¶4 Two other officers searched the vehicle for further evidence of

alcohol consumption. Upon lifting the armrest over the center

console in the front seat, they discovered a bag containing a white

powdery substance that they suspected was, and which turned out

to be, cocaine.

2 Kessler recited the alphabet satisfactorily but showed signs of alcohol impairment in the horizontal gaze nystagmus, walk and turn, and one-legged stand parts of the standardized roadside maneuvers.

2 ¶5 Approximately three hours after Kessler’s arrest, a deputy

sheriff at the Grand County Jail administered a breath test as

Kessler had requested. The test results showed that he had a blood

alcohol content of 0.097g/210L.

¶6 At trial, Kessler testified that although he had been drinking,

he was not drunk, and that the cocaine found in his car did not

belong to him. It could have been put there, he posited, by others

(i.e., his girlfriend and a panhandler) who had been in the car

earlier that day.

¶7 The jury found Kessler guilty as charged.

II. Sufficiency of Evidence: Possession of a Controlled Substance

¶8 Kessler contends that the evidence was insufficient to convict

him of possessing a controlled substance (cocaine). We disagree.

¶9 As an initial matter, we reject the People’s position that this

issue was not properly preserved for appeal. Although Kessler did

not offer a precise argument, he did move for a judgment of

acquittal on this and all the other counts. In response, the

prosecution addressed each count in turn, including possessing a

controlled substance. The trial court then denied Kessler’s motion

after, like the prosecution, addressing each count and its specific

3 evidence. Because the trial court specifically addressed the count

that Kessler challenges on appeal, the issue is properly preserved.

People v. McFee,

(“Where, despite imprecision in

the objection, the trial court actually rules on the claim raised on

appeal, and makes findings of fact and conclusions of law, the claim

is sufficiently preserved.”).

¶ 10 Turning to the merits, we note Kessler was convicted under

section 18-18-403.5(1), C.R.S. 2017, which provides, “it is unlawful

for a person knowingly to possess a controlled substance.” Here,

Kessler asserts that there was insufficient evidence from which a

jury could find that he possessed, or knowingly possessed, the

cocaine because he borrowed the car from his father, he was not in

exclusive control of the car on the date in question, and he denied

knowing the cocaine was in the car. In support of his assertion, he

advances two contentions — namely, that (1) where a person is not

in exclusive control of the area in which drugs are found, the

inference of possession may not be drawn unless statements or

other circumstances buttress that inference; and (2) the mere

presence of a drug does not, in and of itself, prove knowing

possession of it, see People v. Poe,

.

4 ¶ 11 A flaw in Kessler’s arguments is their premises — that is, that

he was not in exclusive possession of the car (because others had

ridden in it that day) and that nothing besides the mere presence of

the cocaine was presented to show he knowingly possessed it. His

premises assume that the jury believed his version of events. Such

an assumption is given no effect, however, in assessing a sufficiency

of evidence issue.

When assessing the sufficiency of the evidence supporting a conviction, we review the record de novo to determine whether the evidence, viewed in the light most favorable to the prosecution, was both substantial and sufficient to support the conclusion by a reasonable mind that the defendant was guilty beyond a reasonable doubt.

People v. Griego,

.

¶ 12 In analyzing the sufficiency of the evidence, we recognize that

(1) it is for the fact finder to determine the difficult questions of

witness credibility and the weight to be given to conflicting items of

evidence, see People v. Gibson,

(Colo. App. 2008);

(2) a fact finder is not required to accept or reject a witness’s

testimony in its entirety; it may believe all, part, or none of a

witness’s testimony, Gordon v. Benson,

(Colo.

5 1996); (3) an actor’s state of mind is normally not subject to direct

proof and must be inferred from his or her actions and the

circumstances surrounding the occurrence, People v. Phillips,

(Colo. App. 2009); (4) the prosecution must be given

the benefit of every inference that may fairly be drawn from the

evidence, People v. Heywood,

; (5) “[i]f there is

evidence upon which one may reasonably infer an element of the

crime, the evidence is sufficient to sustain that element,” People v.

Chase,

, ¶ 50; and (6) “[w]here reasonable minds could

differ, the evidence is sufficient to sustain a conviction,” People v.

Bondurant,

(quoting People v. Carlson,

(Colo. App. 2003)); see People v. Arzabala,

(“An appellate court is not permitted to act as a ‘thirteenth

juror’ and set aside a verdict because it might have drawn a

different conclusion had it been the trier of fact.”).

¶ 13 Initially, we note that the possibility someone else was in the

car earlier that day does not change the fact that Kessler was in

exclusive possession of the vehicle when it was stopped and

searched, making him subject to the inferences that he knowingly

possessed the cocaine. See People v. Baca,

, 1007

6 (Colo. App. 2004) (“[K]nowledge [of drugs] can be inferred from the

fact that the defendant is the driver and sole occupant of a vehicle,

irrespective of whether he is also the vehicle’s owner.”); see also

Goliday v. State,

(Ind. 1999) (holding that where the

defendant was the only person in a borrowed car when stopped, his

exclusive possession of the car was sufficient to raise a reasonable

inference of knowledge of the presence of contraband). Moreover,

as noted above, the jury was not bound to accept Kessler’s

testimony that others had been in the car that day — yet another

reason why, for sufficiency of evidence purposes, Kessler could be

considered to have been in exclusive possession of the car.

¶ 14 Furthermore, one officer testified that the cocaine was, upon

the simple movement of lifting the armrest, plainly visible — and

not covered by anything — in the console. This testimony, in

conjunction with the cocaine’s location just inches from where

Kessler sat on and off for ten hours that day, and Kessler’s

testimony that, to his knowledge, no one else had interacted with

the console, amply supported the inference that Kessler knowingly

possessed the cocaine. See People v. Warner,

, 564

7 (Colo. App. 2010) (“A conviction for possession of a controlled

substance may be predicated on circumstantial evidence.”).

III. Admission of Evidence Concerning the Cocaine Found in the Car

¶ 15 On appeal, Kessler contends that the trial court should have

suppressed evidence related to the recovery of cocaine from his car

because the police lacked sufficient grounds to search the car once

they seized the half-empty bottle of schnapps. We disagree.

¶ 16 A district court’s ruling on a motion to suppress evidence

presents a mixed question of law and fact. People v. Glick,

(Colo. 2011); People v. Rabes,

(Colo.

App. 2010). We defer to the court’s findings of fact so long as they

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

the court’s legal conclusions de novo. Glick,

.

¶ 17 The Fourth Amendment to the United States Constitution

protects against unreasonable searches and seizures. People v.

D.F.,

(Colo. 1997). Warrantless searches are

presumptively invalid unless justified by an established exception to

the warrant requirement. People v. Prescott,

(Colo. App. 2008). One such exception is the search of a vehicle

8 incident to a lawful arrest. People v. Coates,

(Colo.

2011).3

¶ 18 In Arizona v. Gant,

(2009), the United States

Supreme Court held that “[p]olice may search a vehicle incident to a

recent occupant’s arrest only if the arrestee is within reaching

distance of the passenger compartment at the time of the search or

it is reasonable to believe the vehicle contains evidence of the

offense of arrest.”

.

¶ 19 Here, because Kessler had been removed from the car and

taken into custody before the search occurred, we are concerned

only with the second Gant situation — that is, whether it was

reasonable for the police to believe that Kessler’s vehicle contained

evidence of the offense of arrest, DUI.

¶ 20 Many state and federal courts hold “either ‘that the “nature of

the charge” is determinative of whether there exists a reasonable

basis to search for evidence’ or that reasonableness of belief should

3 This is the exception on which the parties and the court focused in the trial court. Another exception is the automobile exception. See People v. Zuniga,

. The applicability of the automobile exception was not argued in the trial court or on appeal.

9 be determined ‘based upon common sense factors and the totality of

the circumstances.’” Rebecca A. Fiss, When “It Depends” Isn’t Good

Enough: The Problems Caused by the Supreme Court of North

Carolina’s Decision in State v. Mbacke,

, 1435–

36 (2013) (footnote omitted) (first quoting Brown v. State,

(Fla. Dist. Ct. App. 2009); then quoting United States v.

Reagan,

(E.D. Tenn. 2010)); see State v.

Eversole, No. 15-17-03,

, at *4 (Ohio Ct. App.

Nov. 6, 2017) (“Two primary approaches to Gant’s reason-to-believe

language have developed — the ‘categorical’ approach and the

‘reasonableness’ approach.”).

¶ 21 Some courts, using the categorical approach, have held that

an arrest for DUI in and of itself supplies the reason for a search

incident to arrest under Gant. See, e.g., People v. Nottoli,

(Cal. Ct. App. 2011) (“[T]he search of the Acura

incident to Reid’s arrest for being under the influence was lawful

under Gant based on the nature of that offense.”); State v. Cantrell,

(Idaho 2010) (“In this case, Cantrell was arrested

for DUI, and the DUI supplied the basis for the search.”).

10 ¶ 22 Other courts have rejected the categorical approach under

Gant in DUI situations, looking instead to the totality of the

circumstances to determine if the officer had a specific, reasonable,

and articulable suspicion apart from the mere nature of the offense

to justify a search of a vehicle incident to the arrest. See, e.g.,

United States v. Taylor,

(D.C. 2012); Taylor v.

State,

(Md. 2016).

¶ 23 In People v. Chamberlain,

(Colo. 2010), the

supreme court eschewed use of a categorical (or nature of offense)

approach to determining the validity of a search of a car incident to

arrest:

The nature of the offense of arrest is clearly intended to have significance, and in some cases it may virtually preclude the existence of real or documentary evidence, but a broad rule automatically authorizing searches incident to arrest for all other offenses cannot be reconciled with the actual holding of Gant.

.

¶ 24 Consequently, “[u]nder the evidence-gathering rationale set

forth in [Gant], officers may search the passenger compartment of a

vehicle where the particular circumstances give rise to a reasonable

articulable suspicion that the vehicle might contain evidence of the

11 crime for which they had probable cause to arrest.” People v. Crum,

(emphasis added) (citation omitted).

¶ 25 The reasonable suspicion standard requires “considerably less

than proof . . . by a preponderance of the evidence and is less

demanding even than the ‘fair probability’ standard for probable

cause.” People v. Polander,

(Colo. 2001). It is

satisfied if the police have specific and articulable facts, greater

than a mere hunch, to support their belief that evidence of the

crime for which the defendant was arrested might be in the car.

See People v. Huynh,

(Colo. App. 2004)

(discussing “reasonable suspicion” in the investigatory stop

context); see also People v. McCarty,

(Colo.

2010) (recognizing that, in the search of a vehicle context,

“reasonable suspicion” must be based on some minimal level of

objective suspicion, not merely a hunch or intuition, that evidence

might be found in the arrestee’s vehicle).

¶ 26 “In considering whether reasonable suspicion exists, the court

looks at the totality of the circumstances, the specific and

articulable facts known to the officer at the time of the encounter,

and the rational inferences to be drawn from those facts,” People v.

12 Garcia,

(Colo. App. 2010), in light of the

officer’s special training and experience, People v. Ortega,

(Colo. 2001); see United States v. Guerrero,

(10th Cir. 2007) (“[O]fficers [may] draw on their own experience

and specialized training to make inferences from and deductions

about the cumulative information available to them that ‘might well

elude an untrained person.’” (quoting United States v. Arvizu,

(2002))).

¶ 27 Here, the trial court determined that the evidence of cocaine

was admissible because of the following:

 The officer had probable cause to arrest Kessler for

driving under the influence based on his failure to

adequately perform the roadside sobriety tests, his

bloodshot eyes, the odor of alcohol on his breath, and the

PBT results.

 Kessler’s initial untruthfulness with the officer about

whether or not he had been drinking made it “reasonably

likely that they could find additional evidence [to support]

a criminal investigation in the vehicle.”

13  One of the two officers who searched the vehicle stated,

based on his training and experience, it was “more

common than not” to find bottles of alcohol in a vehicle of

someone arrested for driving under the influence.

 The first officer had seen a half-empty bottle of schnapps

on the floor behind the passenger seat as he approached

the vehicle.

 Kessler’s intoxication, plus the officer’s observation of the

opened bottle of schnapps, justified the officers’ search of

the car for more bottles of alcohol.

¶ 28 We agree that the search that uncovered the cocaine was

justified. By virtue of the first four items identified above, the police

had more than ample grounds to reasonably suspect that the

vehicle would contain evidence (i.e., alcohol) related to the offense

for which Kessler was arrested. And they found that evidence —

alcohol, in the form of the half-empty bottle of schnapps — in the

car. The question, though, is did the officers’ reasonable suspicion

that the car contained alcohol evaporate once the officers found

some alcohol? In our view, it did not.

14 ¶ 29 Our conclusion in this respect is supported by the decision of

the Wisconsin Court of Appeals in State v. Billips,

,

(Wis. Ct. App. 2011) (unpublished table

decision), a case that, in all material respects, parallels the

circumstances of the present case. In Billips, the defendant was

stopped for speeding. Upon approaching the defendant’s vehicle,

the officer saw what looked to be an open bottle of alcohol inside

the vehicle. He removed the opened bottle from the car, had the

defendant perform roadside sobriety tests, arrested him for

operating a vehicle while intoxicated (OWI), and searched the car for

any other open intoxicants. The officer found a marijuana cigar end

on the center console of the car and more marijuana inside a purse

on the backseat of the car, and the defendant was charged with

possession of tetrahydrocannabinols (THC). Unlike in our case, the

trial court suppressed the evidence of marijuana found in the

defendant’s vehicle. The State successfully appealed that ruling,

however.

¶ 30 In concluding that the search of the vehicle for more open

containers of alcohol was proper, the Wisconsin appellate court

rejected an argument identical to the one made by Kessler here —

15 that is, that the police had no ground to search the car further once

they seized the open bottle of alcohol therefrom:

[The defendant] contends that at the point of her arrest, “it was not reasonable to believe there would be any further physical evidence of OWI in the vehicle. . . . [I]f [the defendant] left intoxicants in plain view in her vehicle, it is not reasonable to assume there were others stashed away out of the deputy’s sight.” In other words, [the defendant] argues that because [the officer] had already removed some evidence from her vehicle, it was not reasonable to believe there would be any further physical evidence of OWI in the vehicle. This same argument was considered by this court in State v. Smiter,

,

,

, and rejected as “nonsensical.” There, the court observed, “Gant expressly permits searches for evidence relevant to the crime of arrest and does not require police to stop that search once some evidence is found.” Smiter,

.

Here, it was reasonable for [the officer] to believe that further evidence related to [the defendant’s] OWI arrest might be found in the vehicle.

Id. at *2.

¶ 31 Persuaded by this analysis, we conclude that the search of the

car and discovery of the cocaine were proper.

16 IV. Admissibility of, and the Instruction on, the Breath Test Results

¶ 32 In two related arguments, Kessler contends that the trial court

erred in (1) not suppressing the results of a breathalyzer test

performed outside the two-hour time period prescribed in section

42-4-1301.1, C.R.S. 2017;4 and (2) accordingly, instructing the jury

that the delay in testing went to the weight of the evidence.5 We

conclude that Kessler has waived these issues.

¶ 33 Kessler did not ask the trial court to suppress the results of

the breath test or otherwise argue to the trial court that they were

inadmissible. He also did not object to the instruction on the

ground asserted on appeal — namely, that a delay in testing

rendered the test results inadmissible.6

4 Section 42-4-1301.1, C.R.S. 2017, which is commonly referred to as the “express consent” statute, allows a driver suspected of drinking to choose a method of testing for his blood alcohol level: breathalyzer or blood test; but the driver must choose one method and may not refuse the test. See § 42-4-1301.1(2)(a)(I). 5 On appeal, Kessler objects to the part of an instruction that said,

“[a]ccording to the law, two hours is considered a reasonable time. A test taken outside of two hours may affect the weight that should be given to results of the test.” 6 To be sure, defense counsel did object to the instruction — but on

grounds different from those asserted on appeal. In the trial court, he objected to the instruction because it included various

17 ¶ 34 So, Kessler has presented a new, or additional, argument on

appeal. Sometimes, we review a new or additional argument raised

for the first time on appeal for plain error. People v. Mares,

(Colo. App. 2011) (“When, as here, a defendant fails

to object or asserts on appeal a ground different from the ground

asserted in the trial court, we review for plain error.”).

¶ 35 However, in this case, the new ground (i.e., that the delay in

conducting the breath test rendered its results inadmissible) for

both of his appellate arguments was explicitly disavowed by defense

counsel in the trial court. In prefacing the objection he made to the

instruction, see supra note 6, defense counsel took the position that

the tests were admissible and that the only question was the weight

to be given them: “I do not disagree with the Court in terms of the

admission of the test . . . . So the test was admitted. We can

certainly argue the weight.”

¶ 36 By agreeing that the test results were admissible and that the

delay in conducting the tests affected only their weight, defense

counsel waived Kessler’s right to argue, as he does here, precisely

presumptions about blood alcohol levels obtained within a “reasonable time frame,” which, he said, “we do not have here.”

18 the opposite. See, e.g., United States v. Olano,

(1993) (stating that a waiver occurs when a defendant specifically

removes claims from the trial court’s consideration by intentionally

relinquishing or abandoning a known right); United States v.

Walton,

(7th Cir. 2001) (a “waived” issue is the

result of an “intentional choice not to assert [a] right” (quoting

United States v. Cooper,

(7th Cir. 2001))).

¶ 37 Recently, our supreme court held that defense counsel’s

general acquiescence to the jury instructions did not waive the

defendant’s appellate claim that the elemental instruction effected a

constructive amendment of the charge, at least in the absence of

other indications that counsel was aware of the defect in the

elemental instruction. See People v. Rediger,

, ¶¶ 41-

47. Here, however, an elemental instruction is not at issue, and

defense counsel did more than generally acquiesce or fail to object.

Defense counsel explicitly agreed that the specific evidence at issue

was admissible. So, Kessler, through his counsel, intentionally

waived the particular point raised on appeal.

¶ 38 Because defense counsel explicitly waived the very claim

Kessler makes on appeal, there is no issue of error for us to review.

19 See People v. Abeyta,

(Colo. App. 1996) (stating

that where a defendant has waived a right, there is no error or

omission by the court, and thus nothing for an appellate court to

review), superseded by rule, Crim. P. 35(c), on other grounds as

recognized in People v. Roy,

(Colo. App. 2010); see

also Olano,

(distinguishing between a “waived” and

a “forfeited” claim of error, and noting that a “waived” claim of error

presents nothing for an appellate court to review); Walton,

(“[A] waived issue is unreviewable because a valid waiver

leaves no error to correct and extinguishes all appellate review of

the issue.”).

V. Questioning Kessler About An Officer’s Veracity

¶ 39 At trial, the amount of alcohol in the bottle of schnapps when

the officer discovered it was contested: the officer said it was half

full, while Kessler testified it was two-thirds full. During cross-

examination, the prosecution asked Kessler if the officer “made up”

the amount of schnapps in the bottle, to which Kessler responded,

“Yeah. I didn’t say that to him.”

¶ 40 On appeal, Kessler contends that the prosecution’s question

was improper under Liggett v. People,

(2006), in which

20 the supreme court held that it is improper to ask a witness to

comment on the veracity of another witness. Significantly, however,

defense counsel lodged no objection to the question; consequently,

reversal is not warranted in the absence of a showing of plain error.

People v. Ujaama,

.

¶ 41 Plain error “provide[s] a basis for relief only on rare occasions,”

in part because “it is difficult to ‘fault a trial court for failing to rule

on an issue that had not been presented to it.’”

at ¶ 40 (quoting

United States v. Simmonds,

(10th Cir. 1991)).

Relief under the plain error doctrine is limited to error that is

“obvious and substantial.” Hagos v. People,

.

¶ 42 Under Liggett, the prosecutor’s question (i.e., asking Kessler if

the officer “made up” the amount of schnapps in the bottle) would

ordinarily be improper because it was, in essence, another way of

asking Kessler whether the officer was “lying.” See Liggett,

(holding questions asking one witness whether another

witness was “mistaken” are improper).

¶ 43 But the People argue those questions were not improper in this

case because Kessler had opened the door to such questioning

when he initiated the exchange by stating that the officer

21 “exaggerated” when he testified that Kessler admitted to having

drunk half of the bottle. See, e.g., United States v. Schmitz,

(11th Cir. 2011) (The court “recogniz[ed] that were-

they-lying questions might be proper ‘if a defendant opened the

door by testifying on direct that another witness was lying.’”

(quoting United States v. Harris,

(3d Cir. 2006))).

¶ 44 The problem with the People’s argument, however, is that the

testimony of Kessler on which they rely was not elicited by him on

direct examination, but, rather, by them earlier in their cross-

examination of him. Because a party cannot open its own door to

create an opportunity for the admission of otherwise inadmissible

evidence, see State v. Prine,

(Kan. 2009), we

conclude that, had a proper objection been made, the trial court

would have erred in allowing the prosecutor to ask Kessler the

referenced question.

¶ 45 But “[t]o qualify as plain error, an error must generally be so

obvious that a trial judge should be able to avoid it without the

benefit of an objection.” Scott v. People,

. For an

error to be “this obvious,” it must ordinarily contravene (1) a clear

22 statutory command; (2) a well-settled legal principle; or (3) Colorado

case law.

¶ 46 Here, we have neither a clear statutory command nor on-point

Colorado case authority. We do, however, have a “well-settled legal

principle” — namely, that witnesses should not be asked to

comment on the veracity of other witnesses — as well as a twelve-

year-old case holding that questions closely analogous to the

question asked of Kessler (i.e., whether the officer “made up” the

amount he said was in the bottle of schnapps) are improper. See

Liggett,

(holding questions about whether a witness

was “mistaken” and whether a witness was lying are improper).

Because the case law establishing and applying the legal principle

in closely analogous circumstances is well settled, we conclude that

the error in allowing those two questions should have been

“obvious” to the trial court.

¶ 47 However, to obtain relief under the plain error rule, it is not

enough that “obvious” error occurred when the prosecutor was

allowed to ask Kessler whether the officer “made up” something.

The error must also be “substantial.” Hagos, ¶ 14.

23 ¶ 48 To qualify as “substantial” in this context, an error must be

“seriously prejudicial” — that is, it must have so undermined the

fundamental fairness of the trial as to cast serious doubt on the

reliability of the defendant’s conviction. Ujaama, ¶ 43; see also

Hagos, ¶ 14. For the following reasons, we conclude that the

“obvious” error occasioned by the prosecutor’s asking Kessler

whether the officer “made up” the amount of alcohol was not

“substantial.”

¶ 49 First, the question the prosecutor asked was not only a small

part of the case, it was also a small part of Kessler’s twenty pages of

testimony. Cf. People v. Herr,

(Colo. App.

1993) (prosecutor’s “improper comments were isolated ones made

during a very lengthy summation”).

¶ 50 Second, similar to Liggett — where the court found no plain

error — an assertion that the officer “made up” things was less

damaging than a question that would have explicitly asserted that

the officer was lying. Liggett,

.

¶ 51 Third, the evidence against Kessler was strong. The

prosecution presented (1) the officer’s testimony regarding Kessler’s

appearance and unsatisfactory performance in the roadside

24 maneuvers; (2) Kessler’s blood alcohol level results from the

breathalyzer test; and (3) Kessler’s own admission that he had

drunk from the bottle of schnapps. See People v. Cordova,

(Colo. App. 2011) (because “the evidence of [the]

defendant’s guilt was strong,” prosecutor’s misconduct was not

plain error).

¶ 52 In light of these circumstances, we conclude that the

prosecutor’s question did not cast serious doubt on the reliability of

Kessler’s conviction. Consequently, the error was not “substantial”

and does not warrant reversal under the plain error rule.

VI. Conclusion

¶ 53 The judgment of conviction is affirmed.

JUDGE NAVARRO concurs.

JUDGE DAILEY concurs in part and dissents in part.

25 JUDGE DAILEY, concurring in part and dissenting in part.

¶ 54 I agree with all but Part III of the majority’s opinion. Unlike

the majority, I do not find persuasive the decision in State v. Billips,

,

(Wis. Ct. App. 2011)

(unpublished table decision). To the contrary, in my view the police

were required to have a factual basis upon which to support an

articulable, reasonable suspicion to believe that the vehicle might

contain one or more bottles of alcohol in addition to the one initially

observed in and recovered from the car. Accepting that Kessler was

intoxicated, there is no reason evident in the record to believe that

he likely consumed more than the observed, half-empty bottle of

schnapps.

¶ 55 The People argue, however, that the officers’ experience and

training supported the search for more bottles of alcohol. But the

officers did not give any details about their training or experience

with DUI arrests or provide any particularized reason based on that

experience or training to believe that Kessler’s vehicle might contain

evidence of even more consumed alcohol than the already recovered

half-empty bottle of schnapps. In similar circumstances, the

District of Columbia Court of Appeals said:

26 As we have explained, [the officer’s] experience must be considered as part of the totality of the circumstances. In this case, however, “we know too little about [the officer’s] experience,” Duckett v. United States,

(D.C. 2005), to place much weight upon his conclusory statement that “typically someone who is driving under the influence also has an open container of alcohol or multiple containers of alcohol in their vehicle.” Without a great deal more detail, we have no basis for determining whether such behavior is indeed “typical” of someone driving under the influence. Moreover, relying uncritically on that experience would amount to endorsing a per se rule governing DUI cases. See

(“Whatever [the officer’s] experience in traffic stops of others, we think that the necessary particularized and objective basis for suspecting [the defendant] was absent here.”).

United States v. Taylor,

(D.C. 2012) (emphasis

added); see United States v. Reagan,

(E.D.

Tenn. 2010) (holding an officer must have something more than

general prior experience of finding alcoholic beverage containers in

a DUI arrestee’s vehicle to justify a search of the vehicle); see also

State v. Eversole, No. 15-17-03,

, at *10 (Ohio Ct.

App. Nov. 6, 2017) (“[A]lthough a law-enforcement officer’s general

prior experience is one of the common-sense factors to consider

when deciding the reasonableness of his or her belief that evidence

27 of specific crime is located inside a vehicle’s passenger

compartment, that general prior experience alone is not enough to

establish a reasonable belief that evidence of [DUI] is contained in a

vehicle.”).

¶ 56 I am persuaded by these authorities. And because the record

contains no reason particularized to Kessler or the circumstances of

this case, I would conclude that the police lacked the requisite

reasonable suspicion to further search the car for alcohol once they

recovered the half-empty bottle of schnapps. See People v. McCarty,

(Colo. 2010) (“[A]lthough it is perhaps

conceivable that the arrestee’s vehicle might contain some evidence

of the possession offense for which the officers had probable cause

to arrest, nothing peculiar to these circumstances supported a

reasonable suspicion that any additional evidence existed, much

less that it would reside in the arrestee’s vehicle, rather than on his

person or elsewhere.”) (emphasis added); cf. People v. Estrada, No.

B221094,

, at *5-6 (Cal. Ct. App. Jan. 25, 2011)

(unpublished opinion) (rejecting, under Gant, the validity of a

search of a vehicle, where, following the defendant’s arrest for

public intoxication, the officer “‘opened the truck, discovered the

28 container that [the defendant] tossed in there,’ which was . . .

exactly the type of bottle from which [the officer] believed defendant

had been drinking,” and “continued to look in the car to see if there

was [sic] any other alcoholic beverages and what not”; and

concluding, “[t]o allow a search of a vehicle here would be to permit

general rummaging”).

¶ 57 Because the search that uncovered the cocaine was illegal, all

evidence pertaining to the cocaine or its recovery should have been

suppressed at trial. The error in admitting such evidence could not

be considered harmless with respect to the count charging Kessler

with its possession, and Kessler’s conviction on that count should

be vacated.

29